Radchuck et al v. City of Citrus Heights et al

Filing 29

ORDER signed by Judge John A. Mendez on 11/13/12 re 20 Motion for Summary Judgment: IT IS ORDERED that Officer Jeremy Hatchell is hereby DISMISSED with prejudice from this entire action as a defendant; however, this does not impair his ability to pursue his counter-claims; Officer Nancy Wiegel is DISMISSED with prejudice from this action with the sole exception of her use of the Taser as alleged in the 1st, 4th, 7th, 11th, 14th and 15th Causes of Action; Officer Jeremy Hatchell's use of his firearm is found to be constitutionally reasonable; the 5th Cause of Action (failure to provide adequate medical care) is DISMISSED with prejudice against all defendants; the Defendants' request to dismiss the 9th Cause of Action (Monell ) is DENIED without prejudice; The Plaintiffs may maintain their 12th Cause of Action (California's Bane Act) against the City of Citrus Heights only and, as to all remaining Defendants, this Cause of Action is DISMISSED with prejudice. (Meuleman, A)

Bruce D. Praet SBN 119430
FERGUSON, PRAET & SHERMAN
2 A Professional Corporation
1631 East 18th Street
3 Santa Ana, California 92705
[phone] telephone
4 [phone] facsimile
[e-mail]
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Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARINA RADCHUCK, et al.

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Plaintiffs,
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vs.
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CITY OF CITRUS HEIGHTS, et al.,
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Defendants.
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CITY OF CITRUS HEIGHTS,
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JEREMY HATCHELL and NANCY
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WIEGEL,
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Counter-Claimants )
vs.
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MARINA RADCHUCK, ESTATE OF )
BARYS RADCHUCK, and DOES 1)
10, inclusive,
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Counter-Defendants )
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No. 2:11-CV-00486-JAM-CKD
ORDER re DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

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The Motion for Summary Judgment by Defendants was heard on November
7, 2012, by the Honorable John A. Mendez. The issues having been duly
considered and a decision having been duly rendered:
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Case No. 2:11-CV-00486-JAM-CKD

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IT IS HEREBY ORDERED AND ADJUDGED:

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1. The following Causes of Action are dismissed with prejudice by

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stipulation of the parties:

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a. Second Cause of Action - Violation of the Fourth Amendment of

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the United States Constitution brought pursuant to 42 U.S.C. § 1983 alleging that

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the decedent, Barys Radchuck was unlawfully seized (detained) by Defendant

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Officers Jeremy Hatchell and Nancy Wiegel.
b. Third Cause of Action - Violation of the Fourth Amendment of the

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United States Constitution brought pursuant to 42 U.S.C. § 1983 alleging that the

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decedent, Barys Radchuck was unlawfully seized (arrested) by Defendant Officers

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Jeremy Hatchell and Nancy Wiegel.
c. Sixth Cause of Action - An allegation that the Defendants

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conspired to violated the decedent’s, Barys Radchuck’s, Civil Rights brought

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pursuant to 42 U.S.C. § 1985.
d. Eighth Cause of Action - Violation of the First, Fourth and

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Fourteenth Amendments to the United States Constitution brought pursuant to 42

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U.S.C. § 1983 alleging that the Defendants deprived the Plaintiffs to this action

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their right to a family relationship with the decedent, Barys Radchuck, by the use

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of unreasonable and unjustified force.
e. Tenth Cause of Action - An allegation that the Defendants caused

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the decedent, Barys Radchuck to ensure great conscious pain and suffering

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brought pursuant to 42 U.S.C. § 1983 as a ‘Survival Action’.

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f. Thirteenth Cause of Action - Violation of the decedent’s, Barys

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Radchuck’s statutory rights brought pursuant to California Civil Code §§ 51, et

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seq.

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2. The Plaintiffs’ decedent, Barys Radchuck, was provided with adequate

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medical care and, therefore, the Plaintiffs’ Fifth Cause of Action alleging that the

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Defendants were deliberately indifferent to the decedent’s medical needs brought

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Case No. 2:11-CV-00486-JAM-CKD

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pursuant to 42 U.S.C. § 1983 is hereby dismissed with prejudice.
3. The Plaintiffs allege that the Defendants used constitutionally

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unreasonable force against the decedent, Barys Radchuck, in four separate causes

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of action, which are: First Cause of Action (Free from unreasonable seizures and

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searches brought pursuant to 42 U.S.C. § 1983); Fourth Cause of Action (Free

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from excessive/deadly force brought pursuant to 42 U.S.C. § 1983); Seventh

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Cause of Action (Wrongful Death brought pursuant to 42 U.S.C. § 1983); and

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Fifteenth Cause of Action (State of California common law tort actions for assault

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and battery).

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a. The Court finds that these allegations raised by the Plaintiffs
involve three separate legal theories as described below:

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(1) Whether the Officers Had Sufficient Back Up: The Court

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finds that it is factually undisputed that Defendant Officers Jeremy Hatchell and

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Nancy Wiegel approached a visibly injured man, the decedent, Barys Radchuck, in

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an outdoor environment with their weapons initially holstered. The Court finds

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that this did not create a situation similar to that in Alexander v. City and County

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of San Francisco, 29 F.3d 1355 (9th Cir. 1994), in that the officers did not

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approach Mr. Radchuck with their weapons drawn and that they were not entering

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into his apartment or home. Conversely, Plaintiffs were not able to offer any legal

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authority to support this theory of liability. Accordingly, this theory is dismissed

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with prejudice.

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(2) Whether Officer Nancy Wiegel’s Use of the Taser Was

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Reasonable: Although Officers Wiegel and Hatchell testified that it was not until

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after Mr. Radchuck took an aggressive step towards Officer Wiegel that she

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deployed her Electronic Control Device (also referred to as a “Taser”), Plaintiff

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Marina Radchuck testified during her deposition that Mr. Radchuck was in the

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process of retreating from the officers and that he never took an aggressive step

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towards Officer Wiegel before she deployed her Taser. Because the Court takes

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Case No. 2:11-CV-00486-JAM-CKD

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the facts most favorable to the Plaintiffs, this Court cannot conclude that Officer

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Wiegel’s use of the Taser was constitutionally reasonable force based upon the

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recent Ninth Circuit cases of Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010)

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and Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), cert. denied, 132

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S.Ct. 2681 (2012). Accordingly, the Court denies the Defendants’ request to

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dismiss this theory of unconstitutional use of force.

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(3) Whether Officer Hatchell’s Use of his Firearm Was

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Reasonable: The Court finds that Officer Hatchell’s use of his firearm was

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constitutionally reasonable and relies, in part, on the decision of Brosseau v.

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Haugen, 543 U.S. 194 (2004) in reaching that conclusion. Accordingly, this

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theory is dismissed with prejudice.
b. Because all causes of action against Officer Hatchell alleging

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individual liability have been dismissed, the Court hereby dismisses with prejudice

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Defendant Officer Jeremy Hatchell as a Defendant from this action; however, this

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dismissal does not, in any way, hinder or impair Officer Hatchell’s ability to

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pursue his counter-claims against Plaintiffs or Plaintiffs’ decedent’s estate.

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4. Defendants assert that, although this Court cannot find that Officer

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Wiegel’s use of the Taser was constitutionally reasonable that she is, nevertheless,

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entitled to qualified immunity. However, because the Bryan, supra, case was

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decided three (3) months prior to the incident giving rise to the litigation in this

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present matter, the Court finds that the law was clearly established. Accordingly,

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the Court denies without prejudice the Defendants’ assertion that qualified

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immunity applies in this case.

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5. Defendants assert that the Plaintiffs’ Ninth Cause of Action, a Monell

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allegation brought pursuant to 42 U.S.C. § 1983 fails because any of the causes of

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action alleging individual misconduct against the Defendant-Officers are, in fact,

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constitutional. Because the Court has found that there is a triable issue of fact

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regarding the reasonableness of Officer Wiegel’s use of the Taser, the Court

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denies without prejudice this request. However, the Court cautions that this issue

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will be re-visited at the Pretrial Conference to determine if there is, in fact, any

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policy, procedure, pattern or custom to support this allegation at all.

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6. As to the remaining causes of action brought pursuant to State of

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California statutory or common law and not already dismissed as indicated above,

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the Court finds that the scope of these claims brought for intentional infliction of

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emotional distress, assault and/or battery are limited only to Officer Wiegel’s use

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of the Taser. The Court hereby adopts the same rationale as described in

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paragraph 3.a. above, which is in accordance with, among other authorities, Brown

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v. Ransweiler (2009) 171 Cal.App.4th 516.

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WHEREFORE, it is hereby ORDERED that:

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1. Officer Jeremy Hatchell is hereby dismissed with prejudice from this

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entire action as a Defendant; however, this does not impair his ability to pursue his

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counter-claims;

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2. Officer Nancy Wiegel is dismissed with prejudice from this action with

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the sole exception of her use of the Taser as alleged in the First, Fourth, Seventh,

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Eleventh, Fourteenth and Fifteenth Causes of Action;

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3. Officer Jeremy Hatchell’s use of his firearm is found to be
constitutionally reasonable;
4. The Fifth Cause of Action (failure to provide adequate medical care) is
dismissed with prejudice against all defendants;
5. The Defendants’ request to dismiss the Ninth Cause of Action (Monell)
is denied without prejudice;

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6. The Plaintiffs may maintain their Twelfth Cause of Action (California’s

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Bane Act) against the City of Citrus Heights only and, as to all remaining

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Defendants, this Cause of Action is dismissed with prejudice.

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Dated: November 13, 2012

/s/ John A. Mendez
Honorable John A. Mendez
United States District Court Judge

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Case No. 2:11-CV-00486-JAM-CKD