Fox et al v. Anderson et al

Filing 65

SUPPLEMENTAL ORDER signed by Judge John A. Mendez on 9/13/2012 ACCORDINGLY 45 Defendants' motion for summary adjudication on all the claims against McAtee is GRANTED. Defendants' Motion for Summary Adjudication on the claims brought by Plaintiffs in their First Amended Complaint against Defendants County of Sacramento, City of Rancho Cordova, and Brendan McAtee is GRANTED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRY FOX, NARCISA FOX,
individually and as parents
and natural guardians and
Guardians ad litem of ANTHONY
FOX, DANIEL FOX, SAMUEL FOX
and MARIO FOX, minors,
Plaintiffs,

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SUPPLEMENTAL ORDER RE:
DEFENDANTS’ MOTION FOR SUMMARY
ADJUDICATION

v.
COUNTY OF SACRAMENTO, SCOTT
ANDERSON, R. COCKERTON, B.
MCATEE, ELISA OLMO, SOKA OM,
JASON WALKUP, JOY PIKE, CITY
OF RANCHO CORDOVA, JASMINE
DELGADO and DOES 1 THROUGH
30,
Defendants.

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I. INTRODUCTION

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No. 2:11-CV-00419 JAM-KJN

On August 22, 2012 the Court ordered the parties to submit

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supplemental briefing on the following two issues raised by

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Defendants in their Motion for Summary Adjudication and taken

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under submission by the Court at the conclusion of the August

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22, hearing on Defendants’ Motion:

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Whether the City of Rancho Cordova and the County of
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Sacramento could both be potentially liable under Monell v.

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Dept. of Soc. Servs., 436 US 658, 691 (1978).

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2.

Whether summary judgment should be granted in favor of

Defendant Brendan McAtee.
The Court also directed the parties to brief the issue of

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whether consideration of evidence submitted after oral argument

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constitutes reversible error.

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On August 29, 2012, Plaintiffs submitted their Supplemental
Memorandum along with several declarations and exhibits (Doc

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## 59, 60, 61, 62).

Defendants’ Supplemental Brief was filed on

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September 5, 2012 (Doc #63).

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the Court GRANTS Defendants’ Motion for Summary Adjudication in

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favor of Defendants City of Rancho Cordova, County of Sacramento

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and Brendan McAtee.

For the reasons set forth below,

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II. COURT’S CONSIDERATION OF SUPPLEMENTAL EVIDENCE

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Plaintiffs conceded at the oral argument that several

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pieces of evidence they wanted the Court to consider had been

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inadvertently omitted from their Opposition to Defendants’

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Motion for Summary Adjudication.

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permissible for the Court to allow them to submit supplemental

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evidence after oral argument because supplementation does not

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prejudice any rights of Defendants and such evidence shows that

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there are material issues of fact as to the two remaining issues

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taken under submission by the Court.

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contend that Rule 6(b) of the Federal Rules of Civil Procedure

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is particularly applicable to the supplementation of evidence in

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opposition to a motion for summary judgment because Rule 56(e)

Plaintiffs argue that it is

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Plaintiffs specifically

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expressly provides: “The Court may permit an affidavit to be

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supplemented or opposed by depositions, answers to

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interrogatories or additional affidavits.”

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Defendants argue that all the evidence contained in

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Plaintiffs’ supplement was available at the time of the briefing

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and prior to oral argument and nothing in the Federal Rules of

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Civil Procedure explicitly authorizes the submission of

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additional evidence following oral argument.

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Prince Cruises Ltd., 328 F.Supp.2d 119, 120 (D. Maine 2004)

Peterson v. Scotia

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(denying plaintiff’s motion for leave to supplement the record

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where the supplement was “simply a late effort to do what she

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should have done in responding to the initial summary judgment

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motion”).

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presented by Plaintiffs for the evidence not being provided to

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the Court in the first instance.

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Plaintiffs’ reliance on Rule 6(b) is misplaced since that rule

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permits expansion of fixed deadlines only where a party

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demonstrates “excusable neglect” for failing to timely submit

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the supplemental evidence.

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such excuse has been proffered and the evidence was indeed

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available prior to Plaintiffs original deadline to submit their

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opposition, the Court should not consider such supplemental

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evidence.

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excusable neglect, they would be prejudiced by Plaintiffs’

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“second bite of the apple” in supplementing their opposition to

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Defendants’ motion.

Thus, Defendants contend that no good cause was

Defendants also argue that

According to Defendants, since no

Finally, Defendants claim that in the absence of

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The Court finds Defendants’ arguments to be persuasive.

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Plaintiffs’ counsel conceded at oral argument that “there is
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simply no excuse” for his failure to include the evidence he now

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seeks to admit through this supplement.

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Plaintiffs’ supplement in this case is simply a late effort to

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do what could have, and should have been done earlier.

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Plaintiffs’ counsel’s “inadvertent omissions” do not constitute

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excusable neglect or good cause.

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Plaintiffs’ failure to properly present the supplemental

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evidence in their opposition and objected to the Court’s order

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to both parties to file supplemental briefs.

As in Peterson, supra,

Defendants timely objected to

Defendants’

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objections are sustained and the Court will not consider the

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supplemental evidence in deciding the Monell issue.1

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III. MONELL LIABILITY OF COUNTY OF SACRAMENTO
AND CITY OF RANCHO CORDOVA

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Under Monell, supra, a municipality may be held liable

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under § 1983 only where an “action pursuant to official

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municipal policy of some nature causes a constitutional tort.”

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Bd. Of County Comm’rs v. Brown, 520 US 397 (1997).

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survive summary adjudication on their Monell claim, Plaintiffs

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must present evidence of either: “(1) a longstanding practice or

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custom which constitutes the ‘standard operating procedure’ of a

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local government entity; (2) the decision of a policy-making

In order to

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Given the Court’s ruling on the supplemental briefing,
Defendants’ objections to and motion to strike portions of
Plaintiffs’ supplemental evidence with respect to the Monell
issue are denied as moot. The Court will consider Plaintiffs’
supplemental briefing on the McAtee issue because of its finding
that Defendants raised a new argument concerning integral
participation in its Reply Brief. The Court sustains Defendants’
objection to paragraphs 12 and 19 of the Barry Fox Declaration.
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official who was, as a matter of state law, a final policy

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making authority whose edicts or acts may fairly be said to

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represent official policy in the area of decision; or (3) when

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an official with final policy making authority either delegated

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that authority to, or ratified the decision of a subordinate.”

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Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005).

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Plaintiffs fail to address in their opposition how the evidence

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in this case meets these elements.

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triable issue exists as to whether a constitutional violation

Assuming arguendo that a

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occurred, Plaintiffs still must meet the other Monell elements.

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The Court finds that Plaintiffs have not met their burden.

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Plaintiffs have presented no evidence that any purported

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inadequate training “reflects a ‘deliberate’ or ‘conscious’

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choice by a municipality” not to avoid the risk of harm.

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of Canton v. Harris, 483 US 378, 389 (1989).

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no evidence of a program-wide inadequacy in training which would

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give rise to the deliberate indifference required for Monell

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liability.

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City

Moreover, there is

Id.

Plaintiffs rely exclusively on the testimony of their

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expert Roger Clark.

Even if this Court were to find that Mr.

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Clark was a qualified expert and were to consider his deposition

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testimony and supplemental declaration, Plaintiffs attempt to

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create a material question of fact still falls short.

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Clark has certainly reviewed several County policies which he

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believes are relevant to the instant case, neither his

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supplemental declaration (which the Court may not consider) or

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Plaintiffs’ Opposition brief demonstrate that a material issue

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of fact exists such that summary adjudication on this issue
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While Mr.

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should be denied.

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inadmissible hearsay and, therefore, this Court has no basis for

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determining how Mr. Clark’s specialized knowledge might help the

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trier of fact understand the evidence or determine a fact in

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issue.

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underlying incident to give rise to purported Monell liability,

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which is insufficient.

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Dist., 491 US 701 (1989).

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reasons, the City of Rancho Cordova and the County of Sacramento

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have no Monell liability in this case and Defendants’ motion for

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summary adjudication on the issue is granted.2

FRE 702(a).

Mr. Clark’s expert report itself is

Plaintiffs appear to rely solely on the

See Jett v. Dallas Independent Sch.
In sum, for each of the foregoing

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IV. LIABILITY OF DEFENDNAT BRENDAN McATEE

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Defendant Brendan McAtee (“McAtee”) moves for summary

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adjudication as to all claims against him on the grounds that he

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was (1) not involved in the determination of probable cause or

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exigency; (2) entitled to rely on his fellow officers, and

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(3) was not an integral participant in the alleged unlawful

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conduct.

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officer and was present at Plaintiffs’ home when the Plaintiffs’

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children were removed.

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instructed by Sgt. Cockerton to assist Deputy Scott Anderson

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(“Anderson”) and was not provided any additional instruction or

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information.

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separate vehicles and did not discuss the reason for going to

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It is undisputed that McAtee was called as a back-up

It is also undisputed that McAtee was

McAtee and Anderson went to Plaintiffs’ home in

The Court does not need to reach the issue of whether the City
of Rancho Cordova and County of Sacramento can be held jointly
liable on a Monell claim in light of its decision to grant
Defendants’ motion on this issue.
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the home or what they would do when they arrived.

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completely unfamiliar with Anderson’s investigation and he did

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not hear any of Anderson’s conversation with Barry Fox when he

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arrived at the Fox home.

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was made to remove the Fox children from their home and place

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them in protective custody.

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McAtee cannot be liable merely because he was present during

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entry, entered the house, and provided minor assistance to

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Anderson in the seizure of the three minor children.

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McAtee was

He also had no idea when the decision

Accordingly, Defendants argue that

In Chuman v. Wright, 76 F.3d 292 (9th Cir. 1996) the Ninth

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Circuit defined the contours of individual liability when it

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stated a plaintiff could not hold an officer liable because of

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his membership in a group without a showing of individual

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participation in the unlawful conduct.

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Chuman does not bar group liability, but does require a

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plaintiff to first establish the “integral participation” of the

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officer in the alleged constitutional violation.

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Opposition and Supplemental Opposition fail to present

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sufficient evidence to create a material fact as to McAtee’s

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liability.

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evidence that McAtee actively participated in the seizure, it

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merely argues that McAtee is not “insulated” by his ignorance

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that Anderson allegedly removed the children without a warrant

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and without sufficient exigent circumstances.

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Supplemental Opposition, Plaintiffs submit evidence confirming

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that McAtee was not involved in any decision to enter the home

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or seize the children, but merely entered the residence,

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observed the children getting dressed and assisted in escorting

76 F.3d 292, 294.

Plaintiffs’

The Opposition does not argue or provide any

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In their

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them from the home.

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is no admissible evidence that McAtee ever became aware of the

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absence of a warrant before Anderson entered the Fox home and

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before entering the home himself.

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Contrary to Plaintiffs’ contention, there

Law enforcement officers are generally entitled to rely on

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information obtained from fellow law enforcement officers are

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generally entitled to rely on information obtained from fellow

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law enforcement officers.

See United States v. Jensen, 425 F.3d

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698, 705 (9th Cir. 2005).

Plaintiffs have presented no authority

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requiring McAtee to second guess Anderson’s investigation or

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conclusion under the Fourth Amendment.

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evidence that McAtee was observing a blatant constitutional

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violation and should have stopped it.

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by Plaintiff are distinguishable from the case at bar and do not

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support the finding Plaintiffs urge this Court to make, i.e.,

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that McAtee had a duty to intervene.

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involve a false arrest, excessive force or property damages

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resulting from an illegal search.

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to be held liable for the actions of Anderson, there must be a

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showing of “a realistic opportunity to intercede.”

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v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) (finding non-

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shooting officers who were present at the shootouts had no

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“realistic opportunity” to intercede).

There is also no

The authority’s presented

The present case does not

Moreover, in order for McAtee

Cunningham

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Given that McAtee was called in as a backup, not involved

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in the investigation, traveled to the Fox residence by himself

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where he met Anderson, was not involved in any conversation

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between Anderson and Cockerton and limited his participation to

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assisting one of the children get dressed there was no realistic
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opportunity to intercede.

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discussed above, Defendants’ motion for summary adjudication on

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all the claims against McAtee is GRANTED.

Accordingly, for all the reasons

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V. ORDER

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Defendants’ Motion for Summary Adjudication on the claims

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brought by Plaintiffs in their First Amended Complaint against

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Defendants County of Sacramento, City of Rancho Cordova, and

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Brendan McAtee is GRANTED.

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IT IS SO ORDERED.

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Dated: September 13, 2012.

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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