Duenez et al v. City of Manteca et al

Filing 122

ORDER signed by Judge Lawrence K. Karlton on 12/20/13 ORDERING that the defendants are entitled to the following partial adjudication, based upon plaintiffs' concessions, specifically, that no claim in this action arises from defendants� 39; pointing a gun at decedent's widow, pulling decedent away from the pickup truck, handcuffing decedent, searching the house on Flores Court or detaining or arresting any non-parties to this action. Accordingly, the portions of any claim t hat are predicated upon that conduct are hereby DISMISSED WITH PREJUDICE; Defendants are entitled to qualified immunity for the search that was performed on decedent after the shooting. Accordingly, the portions of any claims that is predicated up on that conduct are hereby DISMISSED WITH PREJUDICE; Defendants' motion for summary judgment on Claim 1, to the degree it asserts any state claim, is hereby DISMISSED WITH PREJUDICE; Defendants' motion for summary judgment against Whitne y Duenez on Claim 1 is GRANTED; Defendants' motion for summary judgment against D.D. (as successor in interest to decedent's estate) on Claim 1, is DENIED to the degree it is predicated upon the Fourth Amendment, and GRANTED to the degree i t is predicated upon the alleged denial of medical care; Defendants' motion for summary judgment on Claim 2, relating to the claim for deprivation of familial relationships is DENIED; Defendants' motion for summary judgment on Claim 3, for Monell liability against the City and Bricker, is hereby DENIED, and that claim may proceed to the degree it is predicated upon inadequate training only; Defendants' motion for summary judgment on Claim 4 is DENIED, however, the court sua spont e dismisses Claim 4 to the degree it is predicated upon the deprivation of familial association, brought by Whitney Duenez in her capacity as successor in interest to the decedent's estate; Defendants' motion for summary judgment on Claim 6 , a claim under Cal. Civ. Code § 52.1, is hereby DENIED; Defendants' motion for summary judgment on Claim 8, by Whitney Duenez for intentional infliction of emotional distress, is GRANTED; Defendants' motion for summary judgment on all claims for injunctive relief is DENIED; Defendants' motion for summary judgment on the request for punitive damages is DENIED; Plaintiffs' motion for summary judgment is DENIED in its entirety; Plaintiffs' motion to seal documents is DENIED; Plaintiffs' motion to re-open discovery, so that they can depose defendants' attorney, is DENIED.(Becknal, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 WHITNEY DUENEZ, individually and as successor-in-interest for Decedent ERNESTO DUENEZ, JR.; D.D., a minor, by and through his guardian ad litem, WHITNEY DUENEZ; ROSEMARY DUENEZ, individually; and ERNESTO DUENEZ, SR., individually, 16 17 18 19 20 21 22 No. CIV. S-11-1820 LKK/KJN ORDER Plaintiffs, v. CITY OF MANTECA, a municipal corporation; DAVID BRICKER, in his capacity as Chief of Police for the CITY OF MANTECA; (FNU) AGUILAR, individually and in his official capacity as a police officer for the CITY OF MANTECA; and DOES 1-100, inclusive, 23 Defendants. 24 25 26 I. BACKGROUND On June 8, 2011, defendant John Moody, a Manteca police 27 officer, shot and killed Ernesto Duenez, Jr. 28 Answer at 3 lines 4-5 and 20-22. Complaint ¶¶ 1 & 9; The events leading to the 1 1 shooting, the shooting itself, and subsequent events, were 2 captured on a “dash-cam” video taken from Officer Moody’s car. 3 Complaint ¶ 1.1 4 This lawsuit is brought by decedent’s widow, Whitney Duenez, 5 his son, D.D. (Whitney Duenez is D.D.’s guardian ad litem), and 6 his parents, Ernesto and Rosemary Duenez, against Moody, the City 7 of Manteca and David Bricker, the Chief of Police. 8 9 The Complaint contains eight (8) federal and state claims. The federal claims allege violations of decedent’s and 10 plaintiffs’ constitutional rights under the Fourth and Fourteenth 11 Amendments to be free from governmental use of excessive force 12 resulting in death, denial of medical attention and denial of 13 rights to familial relationships. 14 negligent and intentional infliction of emotional distress, 15 wrongful death and violation of Cal. Civ. Code § 52.1. 16 The state claims allege Both sides move for summary judgment, each asserting that 17 the video conclusively shows that Moody was, or was not, 18 justified in shooting and killing the decedent. 19 plaintiffs move to seal certain documents, and to re-open 20 discovery so that they can depose defendants’ counsel. In addition, 21 For the reasons set forth below, defendants’ motion for 22 summary judgment and for partial summary judgment will be granted 23 1 24 25 26 27 Defendants object to plaintiffs’ submission of the dash-cam videos from Moody’s car, asserting that it is “not authenticated,” and is “hearsay.” Defendants’ Objection to Evidence in Opposition to Plaintiffs’ Motion for Summary Judgment (“Defendants’ Objections”) (ECF No. 89-3 at p.2 lines 3-6. It is not necessary to resolve this puzzling objection, since the defendants have also submitted the video, and it is not objected to by plaintiffs. 28 2 1 in part and denied in part. 2 judgment, to seal documents and to re-open discovery will be 3 denied in their entireties. 4 II. 5 1. 6 Plaintiffs’ motions for summary UNDISPUTED FACTS Initial report on decedent. On June 8, 2011, Officer Armen Avakian (not a defendant), 7 responded to a report of suspicious activity on Ribier Court, 8 where decedent’s wife, Whitney Duenez, lived, according to the 9 landlady. Plaintiffs’ Statement of Undisputed Facts (“PSUF”) 10 (ECF No. 75-1) ¶ 1.2 11 the apartment, and he and Whitney were not getting along at that 12 time. 13 According to the landlady, decedent was in Id. Avakian ran a warrant check on decedent, which indicated 14 that he was “armed and dangerous,” and that he was wanted on a 15 “parole hold” meaning, apparently, that his parole had been 16 revoked. 17 parole officer and learned that the “parole hold” resulted from 18 decedent having “‘peed dirty,’” and his not being in contact with 19 his parole officer. 20 “armed and dangerous” label came (at least in part), from the 21 parole officer’s having received information that decedent PSUF ¶ 3; DSUF ¶¶ 25-26. PSUF ¶ 4. Avakian spoke to decedent’s Avakian also learned that the 22 23 24 25 26 27 2 Unless otherwise noted, the facts cited in the PSUF are “Undisputed for purposes of this motion” by defendants. See Defendants’ Opposition to Plaintiffs’ Statement of Undisputed Facts (“Def. Opp. To PSUF”)(ECF No. 89-2). It appears that defendants are permitted to limit their concessions in this way. See Fed. R. Civ. P. 56(e)(2) (“If a party … fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may … consider the fact undisputed for purposes of the motion”). 28 3 1 carried a small firearm in his butt-cheeks. 2 learned from Officer Ranch Johnson (not a defendant) that 3 decedent had reportedly been involved in a recent shooting. 4 ¶ 6. 5 found at a residence on Flores Court. 6 this information on to Moody and others on the incoming work 7 shift. 8 9 PSUF ¶ 5. Avakian PSUF Finally, Avakian learned that Duenez could sometimes be PSUF ¶ 7. Avakian passed PSUF ¶ 8. At some point, Officer Mark Rangel (not a defendant) responded to a call from a civilian named Michael Henry that 10 decedent and Whitney had recently left a residence on Pillsbury 11 Road where they had been engaged in a shouting match. 12 Henry later advised the police that decedent had left the 13 Pillsbury Road residence, in the back of a blue pickup truck, and 14 that decedent had a “throwing knife” with him. 15 Henry advised the police that decedent was in the truck with a 16 man (his uncle) and a woman, and that they had left in the truck 17 with decedent willingly. 18 2. 19 PSUF ¶ 9. PSUF ¶ 10-11.3 PSUF ¶ 12. Officer Moody. Defendant Moody has been a “sworn police officer” with the 20 Manteca Police Department since 2000. 21 Statement of Undisputed Facts (“DSUF”) (ECF No. 80-2) ¶ 2.4 22 23 24 25 26 27 28 Defendants’ Separate Up 3 Plaintiff asserts that decedent was “sitting in the back” of the truck. Defendants point out that the testimony plaintiff cites to for this assertion states that decedent “was hiding in the back” of the truck. See May 13, 2013 Deposition of Officer Mark Rangel (“Rangel Depo.”) (ECF No. 76-3) at 10 (Exhibit A to August 12, 2013 Nisenbaum Declaration, ECF No. 76). 4 Unless otherwise noted, the facts cited in the DSUF are “Undisputed” by plaintiffs. See Plaintiffs’ Objections to Defendants’ Separate Statement of Undisputed Facts (“Objections”) (ECF No. 92). 4 1 until the shooting at issue here, the police department had 2 received no complaints about Moody, concerning use of force, 3 provision of medical assistance, truthfulness or concealment of 4 misbehavior. 5 based upon any claim of excessive force, providing medical care, 6 truthfulness or “concealment” of misbehavior. 7 the entire time Moody was employed by MPD, he was involved in 8 only one other incident involving his shooting a firearm in the 9 line of duty. DSUF ¶¶ 3-4. DSUF ¶ 6. Moody has never been disciplined DSUF ¶ 5.5 During The MPD examined that incident and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiffs failed to comply with the Local Rules of this court in responding to the DSUF. See E.D. Cal. R. 260(b). The Objections failed to “reproduce the itemized facts” in the DSUF (this is normally done in chart form), to which plaintiffs were responding. In addition, the Objections failed, in two instances (Nos. 32 & 33), to provide a “citation to the particular portions” of the pleadings or evidence upon which the denial was based. Plaintiffs and their counsel are cautioned that the court expects compliance with its local rules, and that failure to comply could result in the imposition of sanctions. 5 Defendants support this fact with testimony from defendant Bricker: “Office MOODY … received no discipline concerning his use of force while at the Department. Nor did he receive … discipline for any allegations that he was untruthful, or that he ‘covered up’ his use of force or for providing medical care other than in the present action.” Declaration of David Bricker (“Bricker Decl.”) (ECF No. 82-35) at 2. Plaintiffs “dispute” this fact, but offer no evidence to put it genuinely in dispute. Instead, citing a “confidential” portion of Bricker’s deposition testimony, they argue that a witness to an earlier shooting (in which Moody shot out the tire of a car), “criticized” Moody for shooting at the car, and refer to two persons interviewed about the shooting as “complaining” witnesses. Objections ¶ 5. Even if there were a proper evidentiary basis for these arguments (and there is not, as plaintiffs’ assertions are based upon, at best, hearsay within hearsay within hearsay: deposing counsel’s questions about a newspaper account of what these purported witnesses had said to a reporter), they do not even attempt to dispute that Moody was not “disciplined.” 28 5 1 determined that Moody’s actions were justified and proper. 2 3. 3 Id. Moody stakes out 245 Flores Court. Defendant Moody waited near 245 Flores Court for decedent to 4 arrive. 5 “radioed dispatch,” and immediately pursued the truck. 6 ¶ 15. 7 car up behind it, blocking the truck. 8 Duenez was in the back seat of the pickup truck. PSUF ¶ 14. When the pickup truck arrived, Moody PSUF When the truck pulled into the driveway, Moody pulled his 9 4. PSUF ¶ 17; Moody saw that Id. The confrontation begins. 10 Moody exited his car and began issuing commands to decedent. 11 PSUF ¶ 18; Bricker Decl. Exh. A (“Exh. A”) (ECF No. 80-35) (video 12 of the incident). Upon exiting his car, Moody ordered decedent 13 not to move. He ordered decedent to show his hands or put 14 his hands up. 15 drew his weapon, then holstered it, then drew it again. 16 ¶ 18; Exh. A. 17 or attempting to exit it, on the passenger side. 18 Exh. A. 19 briefly had an object in his right hand. 20 22 Id. While this was happening, Moody initially PSUF Meanwhile, decedent was exiting the pickup truck, Id. ¶¶ 18 & 19; As he was exiting the truck, decedent appears to have 5. 21 Id. PSUF ¶ 20; Exh. A.6 Moody shoots decedent to death. Moody ordered decedent to “drop the knife.” PSUF ¶ 21. Immediately upon issuing this order, Moody started shooting 23 24 6 25 26 27 Plaintiffs assert that tweezers later found on the scene are consistent with the object seen in the video. PSUF ¶ 20. Defendants say that decedent had a knife in his hand, citing Moody’s deposition testimony that decedent had “a large knife, chrome or silver blade” in his right hand. See Moody Depo. at 26. 28 6 1 decedent.7 2 decedent, killing him. 3 20-22.8 4 the ground. 5 Moody radioed in that shots had been fired, causing the police 6 dispatcher to immediately summon emergency medical help to the 7 scene. 8 No. 80-36) at 5. 9 decedent as he lay dying, nor did he do anything after the PSUF ¶ 21; Exh A. Moody fired thirteen (13) shots at PSUF ¶ 23; Exh. A; Answer at p.2, lines The final shots were fired after decedent had fallen to PSUF ¶ 22; Exh. A.9 After he stopped shooting, DSUF ¶ 15; Declaration of John Moody (“Moody Decl.”) (ECF Moody did not render any medical assistance to 10 shooting to medically injure the decedent.10 11 Decl. at 5. 12 6. 13 14 DSUF ¶ 22-23; Moody Whitney Duenez arrives. Upon the firing of the final shots, Whitney Duenez arrived on the scene. PSUF ¶ 25.11 The police on the scene ordered 15 7 16 17 18 Plaintiffs say Moody began shooting “almost simultaneously” with this command. PSUF ¶ 21. Defendants say Moody began shooting after this command, citing the video. Defendants’ Opposition to PSUF ¶ 21. 8 20 Plaintiffs say Moody shot decedent thirteen times. PSUF ¶ 23. However, the evidence plaintiffs cite only indicates that Moody shot at decedent thirteen times, but does not indicate that decedent was hit thirteen times. See Moody Depo. at 37. 21 9 19 23 Plaintiffs say decedent was “already shot and on the ground.” PSUF ¶ 22. Defendants say decedent was “curling up off the ground towards the open doorway of the pickup truck,” citing the video. Defendants’ Opposition to PSUF ¶ 22. 24 10 22 25 26 27 28 Plaintiffs say Moody had a legal obligation to render aid. Defendants say he had no such legal obligation, and in any event, there was nothing Moody could have done. 11 Plaintiffs say Whitney ran screaming to the scene “[s]imultaneous with the last shots.” PSUF ¶ 25. Defendants say the video indicates she arrived “several seconds after the last shot was fired,” and was not screaming. Def. Opp. to PSUF ¶ 25. 7 1 Whitney to “move back.” 2 defendant) pulled Whitney away from the scene, handcuffed her, 3 and placed her in a patrol car. 4 7. 5 PSUF ¶ 27. Officer Rangel (not a PSUF ¶ 29.12 Moody handcuffs and searches decedent. After the shooting, Moody tried to pull the decedent away 6 from the truck, but was unable to do so because, as he 7 discovered, decedent’s foot was entangled in the seat belt. 8 ¶ 30. 9 seatbelt to release decedent’s foot, and Moody “reasonably and PSUF An officer (either Moody or another officer), then cut the 10 properly” pulled decedent away from the truck “for proper safety 11 reasons.” 12 decedent over and “properly handcuffed” the decedent “for proper 13 safety reasons.” 14 alive when he was pulled away from the truck, flipped over and 15 handcuffed. 16 weapons, including a search of decedent’s buttocks area. 17 ¶ 34.15 18 19 DSUF ¶ 16;13 PSUF ¶¶ 31 & 32. DSUF ¶ 17;14 PSUF ¶ 33. PSUF ¶ 33. Moody then “flipped” the Decedent was still Moody then searched the decedent for PSUF The search of decedent’s body and clothing did not 12 Both sides agree that Rangel wanted to avoid contaminating the scene. Defendants assert that he also pulled her away because she was disobeying his orders. 20 13 21 22 Plaintiff says “undisputed” to defendants’ “reasonably and properly” characterizations and “safety reasons” explanation. 14 23 Plaintiff again says “undisputed” to defendants’ “reasonably and properly” characterizations and “safety reasons” explanation. 24 15 25 26 27 28 Plaintiffs characterize this as a strip search because, they assert, Moody pulled decedent’s pants or underwear down. Defendants say it was not a strip search because Moody only lifted decedent’s underwear briefly and glanced at the buttocks area. The court notes the following language from the Supreme Court, referring to the search of a person who, unlike the mortally wounded decedent, is still conscious and able to follow directions: 8 1 produce a knife or a gun, or any other weapon. PSUF ¶ 35. 2 From the time of the search until medical help arrived, the 3 scene was sufficiently secure that medical assistance could have 4 been given to the decedent. 5 neither Moody nor any other police officer at the scene provided 6 any medical assistance to the decedent as he lay dying. 7 ¶ 38. 8 retrieve a trauma kit from his patrol car, and he cut off 9 decedent’s shirt. 10 PSUF ¶ 38. During that time, PSUF However, Moody did eventually request that someone PSUF ¶ 37. However, paramedics arrived and Moody did not take any further action regarding the decedent. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [S]ome cases of this Court refer to a “strip search.” The term is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. ___, 132 S. Ct. 1510, 1515 (2012). The court also notes this definition of “strip search” contained in the California Penal Code: As used in this section, “strip search” means a search which requires a person to remove or arrange some or all of his or her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of such person. 27 Cal. Penal Code § 4030(c). 28 9 1 PSUF ¶ 37; Exh. A. 8. The on-scene investigation. 2 Officer Ranch Johnson (not a defendant), looked for evidence 3 at the scene of the shooting. PSUF ¶ 39. He found a “black 4 clip-on knife” holder attached to decedent’s belt and a knife in 5 the bed of the truck on the “driver’s side tailgate.” Id. He 6 also found black tweezers on the ground near the passenger’s side 7 of the truck. Id. The tweezers did not belong to any of the 8 officers at the scene. PSUF ¶ 41. In addition, Johnson found a 9 glass drug pipe on the lawn and shell casings scattered about. 10 Id. 11 9. Defendant David Bricker, Chief of Police. 12 Defendant Bricker was the Chief of Police at the time of the 13 shooting; he is now retired. PSUF ¶ 42; DSUF ¶ 1. Bricker went 14 to the scene and transported Moody back to the police station. 15 PSUF ¶ 43. Bricker watched the dash cam video of the shooting 16 the next morning. PSUF ¶ 45. Before the DA’s investigation was 17 completed, but after getting a preliminary view from the DA 18 investigator, Bricker formed a “preliminary opinion” that the 19 shooting was justified, and was within police department policy. 20 He emailed his view to all police department staff. PSUF ¶ 44. 21 Bricker also publicly announced to the press, before the DA’s 22 investigation was completed, that the shooting was justified, and 23 that the police department stood behind Moody. PSUF ¶¶ 47-48; 24 DSUF ¶ 12-13. 25 10. The DA’s investigation. 26 The San Joaquin County District Attorney’s Office (not a 27 defendant) conducted an investigation into the shooting. 28 10 Accord, 1 PSUF ¶ 48. 2 protocol that ensured that Chief Bricker would not be involved. 3 DSUF ¶ 9 & 10. 4 was justified, and the City was so notified. 5 police department then conducted a “shooting review panel,” and 6 determined that Moody “acted properly during this incident.” 7 DSUF ¶ 30. 8 9 The investigation was properly conducted under a This investigation concluded that the shooting DSUF ¶ 28. The Nick Obligacion (not a defendant) became Chief of Police while the investigation was still on-going. He also concluded 10 that the shooting was justified and within police department 11 policies. 12 13 PSUF ¶¶ 50 & 51. 11. Officer Moody – training and qualifications. The State of California operates the Commission on Peace 14 Officer Standards and Training (“POST”), which specifies the 15 training requirement for peace officers, including Moody, 16 throughout the state. 17 officer to go on duty as a peace officer, that officer must meet 18 POST required firearm qualifications or requalifications for his 19 service weapons. 20 officer is required to achieve a passing score on one of up to 21 three “attempts” in order to pass the requalification. 22 Receiving a non-passing score on at “attempt” is not a failure of 23 the requalification attempt, however flunking all three attempts 24 “constitutes a failure of the requalification exam.” 25 Bricker Decl. at 2. Id., at 3. In order for an Under the City’s testing methods, n Id. Id. According to an apparently official document discussed 26 during Bricker’s “confidential” deposition, Moody failed a 27 firearm requalification on or about May 12, 2008. 28 Portion of Bricker Depo. at 66. Confidential The deposition discussion is not 11 1 entirely clear about what happened, but from the language of the 2 document – “Test 1, fail. 3 that Moody flunked all three attempts, and later passed in a 4 remedial exam. 5 firearms exam by flunking all three attempts. 6 Portion of Bricker Depo. at 73. 7 eventually passed the requalification. 8 2011 Moody again failed the firearm requalification exam by 9 flunking all three attempts, “during a nighttime shooting Remedial, pass.” – the court infers On December 7, 2010, Moody again failed the Confidential It appears that once again Moody Bricker Decl. at 3-4.16 See id. On February 9, 10 scenario.” 11 pass the exam on his next attempt the next day, after an apparent 12 defect in the weapon was corrected. 13 12. However, Moody was able to Id. Policy. 14 Police department policy is that a police officer must 15 qualify and then periodically re-qualify on his firearm in order 16 to carry that firearm on duty. 17 at 78. 18 flunked all three attempts), and then flunked the remedial exam 19 (that is, again flunked all three attempts), police department 20 policy would be to notify Bricker, who would then take action to 21 take the officer’s gun away from him. 22 Depo. at 64-65. 23 See Confidential Bricker Depo. If an officer failed a requalification exam (that is, See Confidential Bricker Short of being unable to pass on the remedial exam, if an 24 officer has “a continuing pattern of failing the first time and 25 16 26 27 Bricker declares that Moody “only failed one firearms skills test,” which occurred on February 9, 2011. Bricker Decl. at 3. However, he offers no explanation for his prior testimony discussing Moody’s apparent failures on or about May 12, 2008, and on December 7, 2010. 28 12 1 passing on the remedials,” then policy is to “reassign them to 2 additional firearms training.” 3 Confidential Bricker Depo at 68. III. STANDARDS 4 A. 5 Summary judgment is appropriate “if the movant shows that Summary Judgment. 6 there is no genuine dispute as to any material fact and the 7 movant is entitled to judgment as a matter of law.” 8 P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (it is the 9 movant’s burden “to demonstrate that there is ‘no genuine issue Fed. R. Civ. 10 as to any material fact’ and that the movant is ‘entitled to 11 judgment as a matter of law’”); Walls v. Central Contra Costa 12 Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) 13 (same). 14 Consequently, “[s]ummary judgment must be denied” if the 15 court “determines that a ‘genuine dispute as to [a] material 16 fact’ precludes immediate entry of judgment as a matter of law.” 17 Ortiz v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), 18 quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo 19 Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) 20 (en banc) (same), cert. denied, 132 S. Ct. 1566 (2012). 21 Under summary judgment practice, the moving party bears the 22 initial responsibility of informing the district court of the 23 basis for its motion, and “citing to particular parts of the 24 materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show 25 “that a fact cannot be ... disputed.” 26 Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re 27 Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 28 2010) (“The moving party initially bears the burden of proving 13 Fed. R. Civ. P. 56(c)(1); 1 the absence of a genuine issue of material fact”) (citing Celotex 2 v. Catrett, 477 U.S. 317, 323 (1986)). 3 A wrinkle arises when the non-moving party will bear the 4 burden of proof at trial. In that case, “the moving party need 5 only prove that there is an absence of evidence to support the 6 non-moving party’s case.” Oracle Corp., 627 F.3d at 387. 7 If the moving party meets its initial responsibility, the 8 burden then shifts to the non-moving party to establish the 9 existence of a genuine issue of material fact. Matsushita Elec. 10 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); 11 Oracle Corp., 627 F.3d at 387 (where the moving party meets its 12 burden, “the burden then shifts to the non-moving party to 13 designate specific facts demonstrating the existence of genuine 14 issues for trial”). 15 rely upon the denials of its pleadings, but must tender evidence 16 of specific facts in the form of affidavits and/or other 17 admissible materials in support of its contention that the 18 dispute exists. 19 In doing so, the non-moving party may not Fed. R. Civ. P. 56(c)(1)(A). “In evaluating the evidence to determine whether there is a 20 genuine issue of fact,” the court draws “all reasonable 21 inferences supported by the evidence in favor of the non-moving 22 party.” 23 considers inferences “supported by the evidence,” it is the non- 24 moving party’s obligation to produce a factual predicate as a 25 basis for such inferences. 26 Lines, 810 F.2d 898, 902 (9th Cir. 1987). 27 “must do more than simply show that there is some metaphysical 28 doubt as to the material facts .... Walls, 653 F.3d at 966. Because the court only See Richards v. Nielsen Freight 14 The opposing party Where the record taken as a 1 whole could not lead a rational trier of fact to find for the 2 nonmoving party, there is no ‘genuine issue for trial.’” 3 Matsushita, 475 U.S. at 586-87 (citations omitted). 4 B. 5 At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). … When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. 6 7 8 9 10 11 12 13 14 15 Summary Judgment in the Video Age. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape. 16 Scott v. Harris, 550 U.S. 372, 380-381 (2007) (granting 17 defendant’s motion for summary judgment, and holding that 18 defendant’s action in forcing the plaintiff – a fleeing suspect – 19 off the road, rendering him a quadriplegic, was reasonable in 20 light of the videotape showing the danger the suspect posed to 21 the public, because no reasonable jury could have found that 22 defendant’s actions were unreasonable). 23 24 IV. ANALYSIS – STANDING All defendants move for summary judgment against all 25 plaintiffs on all claims. 26 summary judgment. 27 In the alternative, they seek partial In the First Cause of Action (“Claim 1”), Whitney Duenez and 28 15 1 D.D. assert a claim for “Wrongful Death 42 U.S.C. Section 1983.”17 2 Plaintiffs have never been clear about whether their first claim 3 is a state claim for “wrongful death,” or a federal claim under 4 42 U.S.C. § 1983. 5 it to be a federal claim under Section 1983, in which plaintiffs 6 allege that decedent’s death was wrongful because it violated 7 decedent’s rights under the Fourth and Fourteenth Amendments to 8 the U.S. Constitution. 9 having amended their original complaint, plaintiffs now However, the court has previously interpreted See ECF No. 35 at 22-23. Moreover, 10 specifically assert a state claim for wrongful death in their 11 Seventh Cause of Action (“Claim 7”) (“Negligence – Wrongful 12 Death”). 13 federal claims under 42 U.S.C. § 1983 only, and that it does not 14 assert any state claims. 15 1 as asserting survival claims, as they involve rights that are 16 personal to the decedent. 17 18 19 20 21 22 23 24 25 26 27 Accordingly, the court reconfirms that Claim 1 contains In addition, the court construes Claim 18 Defendants move to dismiss Claim 1 because (1) D.D., who is 17 Defendants previously moved to dismiss this claim, asserting that there is no federal claim for “wrongful death.” ECF No. 27 at 10. The motion was denied because the claim was a federal claim alleging excessive force and denial of the right to medical care under the Fourth and Fourteenth Amendments and Section 1983. ECF No. 35. 18 The original complaint asserted that all plaintiffs and decedent were deprived of their constitutional rights to be free from unreasonable searches and seizures by the shooting and killing of decedent. See ECF No. 1 ¶ 32. The court granted defendants’ motion to dismiss this claim in part, but permitted the claim to proceed as brought by decedent’s widow, as she was the only person alleged to be his successor-in-interest. ECF No. 21 at 14-15 (“only Whitney Duenez may assert a claim for violation of the decedent’s Fourth Amendment rights”). The court dismissed the claim as to all other plaintiffs. Id. 28 16 1 not alleged to be decedent’s personal representative or successor 2 in interest has no standing to bring a survivor claim, and 3 (2) the claim duplicates the survival claim brought by Whitney 4 Duenez in the fourth claim. 5 A. 6 Claim 1 is a federal Section 1983 claim arising from two 7 8 9 10 11 12 13 14 D.D. alleged constitutional violations. “In § 1983 actions, ... the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998) (internal citation omitted). 15 Hayes v. County of San Diego, ___ F.3d ___, 2013 WL 6224281 at 16 *2, 2013 U.S. App. LEXIS 23939 (9th Cir. 2013). 17 In California, with exceptions not asserted to apply here, 18 “a cause of action for or against a person is not lost by reason 19 of the person's death, but survives subject to the applicable 20 limitations period.” 21 cause of action that survives the death of the person entitled to 22 commence an action or proceeding passes to the decedent's 23 successor in interest … and an action may be commenced by the 24 decedent's personal representative or, if none, by the decedent's 25 successor in interest.” 26 brought by the successor in interest to a decedent pursuant to 27 Section 377.30 is a “survival” claim. 28 196 Cal. App. 4th 71, 78-79 (2nd Dist. 2011) (“[s]urvival causes Cal. Code Civ. P. § 377.20. Further, “[a] Cal. Code Civ. P. § 377.30. 17 The action Adams v. Superior Court, 1 of action are governed by section 377.30). 2 death claim, “’the survival statutes do not create a cause of 3 action but merely prevent the abatement of the decedent's cause 4 of action and provide for its enforcement by the decedent's 5 personal representative or successor in interest.’” 6 San Diego Gas & Electric Co. v. Superior Court, 146 Cal. App. 4th 7 1545, 1553 (4th Dist. 2007)). Unlike a wrongful Id. (quoting 8 Therefore, D.D. has standing to assert this claim as a 9 survival claim if he is a successor in interest to the decedent. 10 The court dismissed D.D.’s claim in the original complaint, with 11 leave to amend, because there was no allegation that he was a 12 successor in interest, and because none of the statutory 13 requirements for making D.D. a successor in interest were 14 apparent. 15 Plaintiffs have now submitted a declaration from Whitney Duenez 16 establishing that she and D.D. have fulfilled the legal 17 requirements for making them both the successors in interest to 18 the decedent. 19 Complaint still does not allege that D.D. is a successor in 20 interest. 21 willing to amend the complaint to allege that D.D. is suing as a 22 co-successor in interest. 23 plaintiffs’ strange way of addressing this issue, the court will 24 construe Claim 1 by D.D. to be a survival action. 25 standing to bring this survival action, as it is undisputed at 26 this point that he is a successor in interest to his father’s ECF No. 21 at 14 & n.3; see Cal. Civ. Proc. § 377.32. ECF No. 66.19 Inexplicably, however, the amended Plaintiffs have nevertheless asserted that they are Accordingly, notwithstanding the 27 19 Defendants have not challenged that declaration. 28 18 D.D. has 1 estate. 2 B. 3 Defendants seek summary judgment against Whitney Duenez on Whitney Duenez. 4 Claim 1, arguing that the claim duplicates the Fourth Cause of 5 Action (“Claim 4”), which is expressly labeled as a Section 1983 6 survival claim. 7 “distinct,” but their argument is unintelligible on this point. 8 Among other problems, plaintiffs use the language of “wrongful 9 death” and “survival” claims interchangeably. Plaintiffs argue that the two claims are See ECF No. 97 at 10 15 (referring to the first claim as a “Wrongful Death” claim for 11 damages decedent could have sued for “had he survived” the 12 incident). 13 claims. 14 is “based on personal injuries resulting from the death of 15 another,” whereas “survival actions … are based on injuries 16 incurred by the decedent”). 17 However, these terms refer to entirely different See Hayes, 2013 WL 6224281 at *3 (wrongful death claim Indeed, instead of distinguishing the two claims, 18 plaintiffs’ arguments simply confirm that the two claims are both 19 survival claims, even though the first claim does not contain the 20 language of a survival claim. 21 claim is for “Fourth and Fourteenth Amendment violations the 22 Decedent Duenez suffered and damages for which he would have been 23 entitled to recover had he survived.” 24 a “survival claim” under California law. 25 “Fourth and Fourteenth Amendment violations that Decedent Duenez 26 suffered for damages that he is entitled to which survive his 27 death.” 28 Both survival claims are brought under 42 U.S.C. § 1983 against According to plaintiffs, the first ECF No. 97 at 15. That is The fourth claim is for That is also a “survival claim” under California law. 19 1 Moody, for violations of the Fourth and Fourteenth Amendments to 2 the U.S. Constitution. 3 interest to the decedent. 4 Both are brought by the successors in What is distinct about the claims is that Whitney Duenez’s 5 Claim 4 contains a survival Due Process claim for deprivation of 6 familial relationships, which is missing from Claim 1.20 7 Duenez’s survival Fourth Amendment claim of Claim 1 does 8 duplicate her survival Fourth Amendment claim of Claim 4, 9 however, and so that claim will be dismissed from Claim 1. 10 V. Whitney QUALIFIED IMMUNITY 11 A. Claims 1 and 4 – Fourth Amendment Claims Based Upon Moody’s Shooting of Decedent. 12 13 14 The Complaint’s first and fourth claims assert Fourth 15 Amendment survival claims against Moody arising from Moody’s 16 actions in shooting and killing the decedent. Moody argues that 17 18 19 20 21 22 23 24 25 26 27 20 However, as this court has previously held, [a]llowing a decedent, through his estate, to sue for his own lost relationships with family members based on his death, and not the death of another family member during his life, violates common sense. Cf. Crumpton v. Gates, 947 F.2d 1418, 1422 (9th Cir. 1991) (“Assume parent and child were run over and killed by a driver who was at fault. While both estates could sue for wrongful death, neither could make out a claim for loss of familial companionship, for neither would appreciate the loss of the other.”) (dicta). ECF No. 35 at 23-24. Accordingly, the court will sua sponte dismiss the portion of the Fourth Cause of Action which asserts a survival Section 1983 claim for decedent’s loss of familial relationships. 28 20 1 he is entitled to qualified immunity on those claims because the 2 video shows beyond reasonable dispute that “a reasonable officer 3 in his position, facing a knife-wielding suspect, could have 4 believed that the use of deadly force was reasonably necessary.” 5 ECF No. 80-1 at 35-36. 6 that they are entitled to summary judgment on these claims 7 because the video of the encounter shows beyond reasonable 8 dispute that Moody used excessive deadly force against the un- 9 armed, non-dangerous decedent, an assertion addressed below. 10 11 12 13 14 Plaintiffs are correct that a reasonable jury could view the video as they describe it. 19 20 21 22 23 Accordingly, summary judgment must be denied to both, and the matter must be submitted to the jury. 1. 16 18 Moody is correct that a reasonable jury could view the video as he describes it. 15 17 The court notes that plaintiffs assert Fourth Amendment – excessive force. The Fourth Amendment forbids a police officer from seizing “an unarmed, nondangerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11 (1985).21 Viewing the evidence, especially the video, in the light most favorable to plaintiffs, a reasonable jury could conclude that Moody seized the decedent, a visibly unarmed, non-dangerous civilian, by shooting him dead. See Exh. A. At a minimum, a reasonable jury could find that Moody’s continued shooting of decedent, even 24 21 25 26 27 “Whenever an officer restrains the freedom of a person to walk away, he has seized that person. While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7 (citations omitted). 28 21 1 after he had crumpled to the ground, was an excessive use of 2 force. 3 2. 4 “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. ––––, ––––, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted). 5 6 7 8 9 10 11 12 13 14 15 Qualified immunity. 16 17 Messerschmidt v. Millender, 565 U.S. ___, 132 S. Ct. 1235, 1244- 18 45 (2012). 19 Because Moody is sued for conduct he undertook while in the 20 line of duty, this court’s inquiry into his claim of qualified 21 immunity must balance two competing interests, namely, “‘the need 22 to shield officials from harassment, distraction, and liability 23 when they perform their duties reasonably,’” but also, “‘the need 24 to hold public officials accountable when they exercise power 25 irresponsibly.’” Johnson v. Bay Area Rapid Transit Dist., 724 26 F.3d 1159, 1168 (9th Cir. 2013) (quoting Pearson, 555 U.S. at 27 231). 28 22 1 This court applies a two-part test to determine whether this 2 case is about the former, a reasonable exercise of power, or the 3 latter, an irresponsible exercise of power. 4 this is a summary judgment motion, the court must decide in the 5 first step whether, viewing the facts in the light most favorable 6 to plaintiffs, those facts demonstrate that Moody’s conduct 7 “violated one or more of the plaintiffs’ constitutional rights.” 8 Johnson, 724 F.3d at 1168 (citing Pearson, 555 U.S. at 236).22 9 the second step, the court must decide “whether the right at Keeping in mind that 10 issue was ‘clearly established’ at the time of defendant's 11 alleged misconduct.” 12 this court, understanding that a “reasonable officer avoids 13 committing acts that have been clearly established as 14 unconstitutional,” asks whether “the reasonable officer also 15 would have committed the act that the plaintiffs contend is 16 unconstitutional.” 17 to qualified immunity unless his conduct “violated a clearly 18 established constitutional right.” In 19 Pearson, 555 U.S. at 232. Johnson, 724 F.3d at 1168. Put another way, Moody is entitled Pearson, 555 U.S. at 232. Accordingly, even though a reasonable jury could find that 20 Moody violated decedent’s Fourth Amendment right to be free from 21 the official use of deadly force, as discussed above, Moody can 22 still claim qualified immunity if the right was not “clearly 23 established” at the time of the shooting. 24 22 25 26 27 28 Although the Supreme Court previously mandated that this be the “first” step, Saucier v. Katz, 533 U.S. 194 (2001), it has since retreated from that view, leaving it up to the district court to decide which step to consider first. Pearson, 555 U.S. at 236 (“we now hold that the Saucier protocol should not be regarded as mandatory in all cases,” although “we continue to recognize that it is often beneficial”); Johnson, 724 F.3d at 1168. 23 1 The court finds that it was clearly established at the time 2 of the shooting that it was a Fourth Amendment violation to seize 3 an unarmed, non-dangerous civilian by shooting him dead. 4 Garner, 471 U.S. at 11; Torres v. City of Madera, 648 F.3d 1119, 5 1128 (9th Cir. 2011) (“few things in our case law are as clearly 6 established as the principle that an officer may not “seize an 7 unarmed, nondangerous suspect by shooting him dead” in the 8 absence of “probable cause to believe that the [fleeing] suspect 9 poses a threat of serious physical harm, either to the officer or See 10 to others”), cert. denied, 565 U.S. ___, 132 S. Ct. 1032 (2012). 11 Moody’s 15-line qualified immunity argument fairly begs not 12 to be taken seriously. 13 exonerate Moody, without reference to any actual evidence adduced 14 in the case. 15 officer would have shot decedent because decedent was a “knife- 16 wielding” suspect, who was “waving a knife er[r]atically.” 17 No. 35-36. 18 Statement of Undisputed Facts (ECF No. 80-2) that even asserts 19 that the decedent was in possession of a knife when he exited the 20 truck, or was “wielding” a knife at that time, much less that 21 decedent was waving it “erratically,” when Moody shot him. 22 the contrary, the video of the shooting shows that there may be 23 something briefly in decedent’s hand, but it is not clear beyond 24 reasonable dispute that it is a knife, or a weapon of any kind. 25 See Exh. A. 26 waving a knife erratically. 27 conclusively that the decedent did not wave any knife (or 28 whatever it was that briefly appeared in his hand), erratically It simply asserts facts that might Moody argues, specifically, that any reasonable ECF Moody does not identify any place in his Separate To The video certainly does not show the decedent To the contrary, the video shows 24 1 or in a threatening manner.23 2 could find that Moody violated the decedent’s clearly established 3 Fourth Amendment rights by seizing an unarmed, non-dangerous 4 civilian by shooting him dead. 5 Accordingly, a reasonable jury The court accordingly will deny Moody’s motion for summary 6 judgment on the survival claims of Claims 1 and 4, asserting 7 Fourth Amendment violations arising from shooting the decedent. 8 B. Claim 1 – Qualified Immunity for Not Personally Providing Medical Care. 9 10 The Complaint alleges that after the shooting, and after the 11 scene had been secured, neither Moody nor any other police 12 officer present personally gave the decedent any medical care. 13 Plaintiffs assert that this violated decedent’s Fourth Amendment 14 and Due Process rights to medical care. 15 However, it is undisputed that after the shooting, 16 “emergency medical care was immediately summoned.” 17 DSUF ¶ 19.24 23 23 In any event, the mere possession of a knife by the decedent, without more, is not enough to conclusively render the use of deadly force “reasonable.” Rather, the “most important” factor in determining the reasonableness of the use of deadly force is whether the decedent posed an “immediate threat” to Moody’s safety, or the safety of others. Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (in concluding that the decedent (Lukus) was a danger, “the district court relied primarily on Lukus' possession of a knife.” This was error, because “although there is no question this is an important consideration, it too is not dispositive”). 24 24 18 19 20 21 22 25 26 27 28 Plaintiffs say this is “Disputed,” citing the deposition testimony of John J. Ryan. Plaintiff’s Objections to DSUF (ECF No. 92) ¶ 19. However, Ryan’s testimony confirms that medical aid was summoned immediately. Ryan Depo. (ECF No. 98-4) at 22. Ryan takes issue with the police failure to personally render aid to the decedent. Accordingly, what is disputed in the full statement (DSUF ¶ 19), is whether the officers on the scene “properly” did nothing other than wait for medical assistance to 25 1 Defendants argue that immediately calling for medical assistance 2 is all the constitution requires after they have shot someone. 3 Plaintiffs argue that Moody had a constitutional duty to 4 personally render assistance to decedent after shooting him. 5 Moody is entitled to qualified immunity on this claim. 6 Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th 7 Cir. 1986), the police officers mortally wounded a suspect by 8 applying a “choke hold” in the process of arresting him. 9 In subduing the suspect, the police drove him to the hospital. After 10 After arriving at the hospital, the officers “had difficulty 11 finding a pulse.” 12 they did not use it to save the suspect. 13 to the jail ward on the thirteenth floor of the hospital. 14 Despite the medical staff’s subsequent use of CPR, the suspect 15 was pronounced dead later that morning. 16 clear that taking the mortally wounded suspect to the hospital 17 and up to the jail ward was all the constitution required: 18 Although the officers were trained in CPR, Instead, they took him The Ninth Circuit was The due process clause requires responsible governments and their agents to secure medical care for persons who have been injured while in police custody. We have found no authority suggesting that the due process clause establishes an affirmative duty on the part of police officers to render CPR in any and all circumstances. Due process requires that police officers seek the necessary medical attention for a detainee when he or she has been injured while being apprehended by either promptly summoning the necessary medical help or by taking the injured detainee to a hospital. 19 20 21 22 23 24 25 Maddox, 792 F.2d at 1415 (emphasis added); accord, City of Revere 26 27 arrive. 28 26 1 v. Massachusetts General Hosp., 463 U.S. 239, 244-245 (1983) 2 (although “[t]he Due Process Clause … does require the 3 responsible government or governmental agency to provide medical 4 care to persons … who have been injured while being apprehended 5 by the police,” the government “fulfilled its constitutional 6 obligation by seeing that [the suspect] was taken promptly to a 7 hospital that provided the treatment necessary for his injury”); 8 accord Tatum v. City and County of San Francisco, 441 F.3d 1090, 9 1099 (9th Cir. 2006) (in a case where the police did not cause 10 the injury, the Ninth Circuit held “that a police officer who 11 promptly summons the necessary medical assistance has acted 12 reasonably for purposes of the Fourth Amendment, even if the 13 officer did not administer CPR”). 14 Plaintiffs argue that the constitution requires the officers 15 to personally administer medical care to a person whom they 16 injure. 17 the above cases, nor do they identify even a single case that 18 holds that personal medical attention is required by the 19 constitution. 20 However, plaintiffs offer no contrary interpretation of Because the undisputed facts show that Moody did not violate 21 the decedent’s right to medical care, the court will grant 22 Moody’s motion for summary judgment, on qualified immunity 23 grounds, on Claim 1’s assertion of a Due Process violation 24 arising from the alleged failure to provide medical assistance. 25 C. 26 Moody seeks qualified immunity for the search of decedent’s Qualified Immunity for Search of Decedent. 27 body after the shooting. 28 alleges no claim predicated upon that search. ECF No. 80-1 at 15-19. 27 The Complaint However, both 1 parties treat the search as if it is alleged to be the predicate 2 for a Fourth Amendment claim, so the court will consider the 3 parties’ arguments. 4 Plaintiffs assert that Moody conducted a “public strip 5 search” of the decedent after the shooting, while decedent lay 6 dying. 7 assert qualified immunity for the search that did occur. 8 Defendants are entitled to qualified immunity unless their 9 conduct violated plaintiffs’ clearly established constitutional 10 rights. 11 Defendants, disputing that any “strip search” occurred, See Johnson, 724 F.3d at 1168. The constitutional right at issue here is decedent’s right 12 to be free from unreasonable searches. 13 assert that it is clearly established the police may not conduct 14 a “public strip search” of an unconscious (or semi-conscious), 15 mortally wounded arrestee on a parole violation, when the officer 16 had been informed that the decedent kept a gun in his butt- 17 cheeks. 18 Plaintiffs apparently However, even assuming that such a search violated 19 decedent’s Fourth Amendment rights, that is only the first half 20 of the qualified immunity inquiry. 21 burden of establishing that the unconstitutional nature of the 22 search was “clearly established.” 23 makes no mention of this, and no attempt to show how such a 24 violation was clearly established.25 25 25 26 27 28 Plaintiffs still bear the Plaintiffs’ opposition brief However, in their own motion Its cases do not show it, either. See Way v. County of Ventura, 445 F.3d 1157, 1163 (9th Cir. 2006) (although the strip search was unconstitutional, defendants were entitled to qualified immunity because “a reasonable official in the position of Brooks and Hanson would not have understood that following the jail's policy violated Way's rights because the 28 1 for summary judgment on this claim, plaintiffs assert that “it 2 was long established that public strip searches of even parolees 3 pursuant to an arrest warrant are unconstitutional absent exigent 4 circumstances and probable cause,” citing Foster v. City of 5 Oakland, 621 F. Supp. 2d 779, 791 (N.D. Cal. 2008). 6 The court interprets plaintiffs’ argument to be that the 7 Fourth Amendment right alleged to be violated here is clearly 8 established, apparently by Foster. 9 clearly established ‘[i]f the only reasonable conclusion from However, “[a] right is 10 binding authority were that the disputed right existed.’” 11 Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1389 (9th Cir. 1997) 12 (emphasis added) (quoting Blueford v. Prunty, 108 F.3d 251, 255 13 (9th Cir. 1997)). 14 authority from which this court could conclude that the search at 15 issue here is a violation of decedent’s Fourth Amendment rights. 16 Even if Foster were binding authority, and it is not, it does not 17 establish that the search at issue here was unconstitutional, nor 18 is such a conclusion the only reasonable one to be drawn from 19 Foster. 20 Plaintiffs have not identified the binding In Foster, the plaintiffs were subjected to far more 21 intrusive searches than was involved here. 22 one plaintiff, purportedly for loitering with intent to sell The police stopped 23 24 25 26 27 unconstitutionality of the search they conducted was not clearly established at the time”), cert. denied, 549 U.S. 1052 (2006); Smith v. City of Oakland, 2011 WL 3360451 at *3 (N.D. Cal. 2011) (strip search – which involved pulling the suspects “underwear halfway down” – was not justified during a “parole search” where the suspects had not engaged in any unlawful behavior, and were not in violation of parole, but were just driving their gold Cadillac around town). 28 29 1 narcotics,26 handcuffed him, searched his testicles by hand, 2 forced him over the hood of a patrol car, pulled his pants and 3 underwear down to his knees, spread his buttocks apart and 4 visually searched his anus, in public. 5 The police stopped the second plaintiff, purportedly to search 6 for contraband,27 handcuffed him, brought him to the front of a 7 house, pulled his pants down, ordered him to bend over, spread 8 his buttocks and conducted a visual search of his anus, in public 9 and in front of a crowd of people, including some of the 621 F. Supp. 2d at 783. 10 plaintiff’s acquaintances. 11 third plaintiff out of his car, purportedly to search for 12 contraband,28 handcuffed him, and after putting him in a patrol 13 car, pulled down his pants and underwear revealing his genitalia, 14 and visually searched him for about a minute. 15 each case, there is no question that a “strip search” was 16 involved, as the police pulled the person’s pants and underwear 17 down to their knees, exposing their buttocks and genitalia to 18 whoever was present. 19 20 Id., at 784. The police pulled the Id., at 784. In Foster found that the following criteria governed such searches: 21 1) there must be exigent circumstances; 22 2) the search may only be performed on persons who have been 23 24 25 26 27 26 It turned out that this plaintiff was on the tail end of a five year probation, and had no violations the entire time. All the charges were later dropped. 621 F. Supp. 2d at 783. 27 No charges were ever brought against this plaintiff. 784. Id., at 28 Id., at No charges were ever brought against this plaintiff. 784. 28 30 1 lawfully arrested on probable cause and may not be performed on 2 anyone for whom there is no probable cause to arrest; 3 4 3) the search requires probable cause that is independent of the probable cause found for the arrest; [and] 5 4) the search may only be performed when there is probable 6 cause to believe that the arrestee is in possession of weapons, 7 drugs or dangerous contraband.29 8 9 Even assuming these criteria are binding, or are derived from binding authority, each of them is satisfied here according 10 to the undisputed evidence. 11 circumstances for conducting the search where it was done, 12 namely, the decedent was mortally wounded, and dragging or 13 carrying his body to a more private location would have been an 14 outrage in itself. 15 lawfully arrested; he was in violation of his parole, and had 16 “peed dirty.” 17 cause – independent of the probable cause to arrest – to search 18 decedent’s buttocks for a gun that other officers had advised him 19 might be hidden there. 20 There were plainly exigent Plaintiffs do not contest that decedent was Plaintiffs do not contest that there was probable Equally important, the search of decedent plainly did not 21 involve exposing his body, or any part of it, to public view, his 22 pants and underwear were not pulled down, and there is no 23 evidence or assertion that anyone other than Moody and the police 24 could witness the search. 25 The court finds that it was not clearly established that the 26 27 29 A fifth factor involved invasive body cavity searches, which is not alleged to have occurred here. 28 31 1 search that occurred here violated decedent’s Fourth Amendment 2 rights. 3 of Claims 1 and 4 will be granted. 4 VI. 5 A. Defendants’ motion for summary judgment on this portion SUMMARY JUDGMENT ON THE MERITS Claim Two – Due Process – Deprivation of Familial Relations. 6 7 All plaintiffs – decedent’s parents, his widow and his son – 8 sue Moody for deprivation of their constitutional rights to 9 familial relationships with decedent. 10 judgment on this claim. 11 1. Moody seeks summary 12 Constitutional right - familial relationship. All four plaintiffs – decedent’s widow, his parents and his 13 child – have a cognizable liberty interest in their familial 14 relationship with decedent that is protected by the Due Process 15 Clause of the Fourteenth Amendment. 16 1168-69;30 Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 17 321, 325 (9th Cir. 1991), cert. denied, 506 U.S. 972 (1992);31 18 Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013).32 19 Plaintiffs assert that Moody deprived them of this right when he 20 30 21 22 Johnson, 724 F.3d at “The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child.” Curnow ex rel. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). 23 31 24 25 26 27 “This Circuit has recognized that a child has a constitutionally protected liberty interest under the Fourteenth Amendment in the ‘companionship and society’ of her father.” Hayes, 2013 WL 6224281 at *4 (quoting Curnow, 952 F.2d at 325). 32 “The right to marry and to enjoy marriage are unquestionably liberty interests protected by the Due Process Clause.” Ching, 725 F.3d at 1157. 28 32 1 killed the decedent. 2 light most favorable to plaintiffs, deprived decedent’s family 3 members of their familial interests in a manner that “shocks the 4 conscience,” then his conduct “‘is cognizable as a violation of 5 due process.’” 6 v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)33). 7 2. 8 9 If Moody’s conduct, when viewed in the Hayes, 2013 WL 6224281 at *4 (quoting Wilkinson Whether the shooting “shocks the conscience.” In determining whether Moody’s conduct “shocks the conscience,” the court must first decide which “standard of 10 culpability” applies. 11 Ninth Circuit jurisprudence are whether Moody acted with 12 (1) “deliberate indifference” to the harm he caused decedent, or 13 (2) a “purpose to harm” decedent. 14 1131, 1136 (9th Cir. 2008), quoting County of Sacramento v. 15 Lewis, 523 U.S. 833, 846 (1998).34 16 The two standards that are available from Porter v. Osborn, 546 F.3d The appropriate standard of culpability, in turn, depends 17 upon the type of situation that defendant finds himself in at the 18 time of the challenged action. 19 situation where “actual deliberation is practical,” then his 20 “deliberate indifference” to the harm he caused may be sufficient 21 to shock the conscience. 22 702, 707-08 (9th Cir. 2013) (quoting Wilkinson, 610 F.3d at 554). 23 On the other hand, if Moody made a “snap judgment” because he 24 found himself in an “escalating” and/or “fast paced” situation 25 26 27 33 If Moody found himself in a Gantt v. City of Los Angeles, 717 F.3d Cert. denied, 562 U.S. ___, 131 S. Ct. 1492 (2011). 34 Defendants unhelpfully ignore this dichotomy, arguing only that Moody’s conduct did not meet the “purpose to harm” test. ECF No. 80-1 at 35. 28 33 1 “presenting competing public safety obligations,” then his 2 conduct will not shock the conscience unless he acted “with a 3 purpose to harm” decedent that was “unrelated to legitimate law 4 enforcement objectives.” 5 Lewis, 523 U.S. 833). 6 Id.; Porter, 546 F.3d at 1139 (citing By its nature, the determination of which situation Moody 7 actually found himself in is a question of fact for the jury, so 8 long as there is sufficient evidence to support both standards. 9 Cf., Gantt, 717 F.3d at 708 (trial court could properly have 10 omitted the “purpose to harm” jury instruction where “[n]one of 11 the evidentiary bases for this claim involved ‘a snap judgment 12 because of an escalating situation’”) (quoting Wilkinson, 610 13 F.3d at 554). 14 summary judgment, so long as the undisputed facts point to one 15 standard or the other. 16 appear to be certain circumstances that require the application 17 of one standard or the other. 18 The determination is also a proper matter for Indeed, in the Ninth Circuit, there For example, the fabrication of evidence for use at trial by 19 its nature involves deliberation, and therefore the fact-finder 20 can only apply the “deliberate indifference” standard. 21 Similarly, “the decision whether to disclose or withhold 22 exculpatory evidence is a situation in which ‘actual deliberation 23 is practical,’” thus requiring the application of the “deliberate 24 indifference” standard. 25 Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009). 26 Id. See Tennison v. City and County of San On the other hand, the “purpose to harm” standard is 27 appropriate for situations involving high-speed car chases, 28 shoot-outs, and armed suspects (with weapons like knives or 34 1 automobiles) advancing threateningly on the police, as these 2 situations are rapidly “escalating,” requiring the police to make 3 “snap judgments.” 4 No. 7-cv-1738-DMS (JMA) (S.D. Cal. March 30, 2009) (Sabraw, D.J.) 5 (“the undisputed evidence show[ed] that Mr. Hayes was holding a 6 knife in a raised position and advancing on Deputy King 7 immediately before the shots were fired”), aff’d, 2013 WL 8 6224281; Wilkinson, 610 F.3d at 554 (“[w]ithin a matter of 9 seconds, the situation evolved from a car chase to a situation See, e.g., Hayes v. County of San Diego, Case 10 involving an accelerating vehicle in dangerously close proximity 11 to officers on foot”); Porter, 546 F.3d at 1133 (“an urgent 12 situation” was involved where the decedent revved his car engine 13 and moved his car toward the police officers or their patrol 14 car); Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 15 365, 372 (9th Cir. 1998) (police arrived to find a “gunfight in 16 progress” which “threatened the lives of the 50 to 100 people who 17 were trapped in the parking lot,” requiring them to “act 18 decisively,” as they were “without the luxury of a second chance’ 19 to address a life-threatening situation”).35 20 In this case, the court finds that the submitted evidence 21 creates a genuine dispute about which standard of culpability 22 35 23 24 25 26 27 The court notes that the Ninth Circuit recently used the “purpose to harm” standard without any discussion of whether it, or the “deliberate indifference” standard, applied to the facts. “Parents have a Fourteenth Amendment right to the companionship of a child, which a police officer violates by ‘act[ing] with a purpose to harm’ the child ‘that [is] unrelated to legitimate law enforcement objectives.’ Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008).” Johnson, 724 F.3d at 1168-69. This court does not read Johnson as overruling any prior precedent, and accordingly will analyze both standards of culpability. 28 35 1 should apply in this case. 2 indifference” standard applies, there is a genuine dispute about 3 whether Moody acted with deliberate indifference. 4 “purpose to harm” standard applies, there is a genuine dispute 5 about whether Moody acted with a purpose to harm decedent beyond 6 any legitimate law enforcement objective. Moreover, if the “deliberate If the 7 When the evidence in this case, including the video, is 8 viewed in the light most favorable to plaintiffs, there is a 9 genuine dispute about whether Moody had the “luxury” of 10 deliberation. 11 shouting and movement going on, at no time does the decedent 12 appear to be doing anything other than trying to comply with 13 Moody’s shouted orders. 14 (viewed in the light most favorable to plaintiffs) shows that he 15 was hit and immediately fell to the ground, writhing in pain. 16 Once the decedent fell to the ground, any reasonable jury could 17 find that Moody had the opportunity to deliberate before he 18 resumed shooting. 19 decedent was unarmed during the entire encounter. 20 found that decedent had a knife in his hand, that alone would not 21 necessarily bring the situation into a “purpose to harm” 22 situation, since a reasonable jury could find that decedent was 23 not advancing on Moody, nor threatening him with the knife. 24 Although the video shows that there was much After Moody begins shooting, the video Moreover, a reasonable jury could find that Even if it However, even if a jury were to find that the situation was 25 rapidly escalating, and that Moody had to make snap judgments, it 26 could still find that Moody acted with an intent to harm the 27 decedent and without any legitimate law enforcement purpose. 28 video shows the action from before decedent’s truck drives into 36 The 1 view, through the pre-shooting, through the shooting, and through 2 the post-shooting activities. 3 most favorable to plaintiffs, shows Moody shooting an unarmed man 4 struggling to free his leg from a seatbelt strap so that he can 5 get out of a pickup truck, continuing to shoot him as he falls to 6 the ground, and continuing to shoot him after he falls, mortally 7 wounded, to the ground. 8 after the decedent could possibly have been a threat to anyone. 9 A reasonable jury could infer from the video that since Moody was 10 shooting decedent as he lay mortally wounded on the ground, there 11 may have been some other, non-law enforcement motivation behind 12 the shooting, namely, a purpose to harm the decedent. 13 That video, viewed in the light It shows that Moody kept shooting long Thus, a reasonable jury could find Moody acted with 14 deliberate indifference in a non-emergency situation, or that he 15 acted with a purpose to harm decedent. 16 dismiss Claim 2 will therefore be denied. Defendants’ motion to 17 B. 18 For their Third Claim, Whitney Duenez and D.D. assert a Claim Three – Monell Claim Against Bricker and City. 19 survival claim against Bricker and the City under Monell v. New 20 York City Dept. of Social Services, 436 U.S. 658 (1978), for 21 deprivation of decedent’s Fourth Amendment right to be free from 22 unreasonable searches and seizures, and a direct claim for 23 violation of their own Fourteenth Amendment rights to a familial 24 relationship.36 25 36 26 27 As discussed above, although D.D. is not alleged to be a successor in interest to the decedent, plaintiffs have now submitted a declaration (not challenged by defendants), that D.D. is a co-successor in interest with Whitney Duenez. See ECF No. 66. 28 37 1 There are two basic routes to municipal Monell liability 2 under Section 1983: (1) the City itself violated plaintiffs’ 3 rights, or directed its employees to do so, acting with the 4 required state of mind; or (2) the City is responsible for a 5 constitutional tort committed by its employee. 6 of Washoe, Nev., 290 F.3d 1175, 1185-87 (9th Cir. 2002) 7 (describing “two routes” to municipal liability under 8 Section 1983 for deliberate indifference to inmate’s medical 9 needs), cert. denied, 537 U.S. 1106 (2003).37 10 Gibson v. County In this case, plaintiffs assert that the City is responsible 11 for the constitutional torts committed by Moody. 12 the City is responsible only for its own “illegal acts,” and 13 cannot be held vicariously liable for the actions of its 14 employees. 15 1359-60 (2011).38 16 the part of the City for Moody’s conduct if they can establish 17 that, as a matter of City policy, (1) the City’s supervision of 18 Moody was so deficient that it constituted “deliberate 19 indifference” to those people Moody would come into contact with, 20 (2) its training of Moody was similarly deficient, or (3) the 21 City ratified, approved and/or encouraged Moody’s 22 unconstitutional conduct. 23 Under § 1983, Connick v. Thompson, 563 U.S. ___, 131 S. Ct. 1350, However, plaintiffs can establish liability on A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving force behind a violation 24 25 37 26 Citing Board of County Comm’rs v. Brown, 520 U.S. 397, 404, 406-07 (1994) and Canton v. Harris, 489 U.S. 378, 387 (1989)). 27 38 Citing Monell, 436 U.S. at 692. 28 38 1 of constitutional rights. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978). In order to establish liability for governmental entities under Monell, a plaintiff must prove “(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40, County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original). 2 3 4 5 6 7 8 9 Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011), 10 cert. denied, 569 U.S. ___, 133 S. Ct. 1725 (2013). 11 Plaintiffs will have the burden of proof on this issue at 12 trial, so they must identify facts in the record that would allow 13 the court to conclude that the City had such a policy or 14 practice. Board of County Com’rs of Bryan County, Okl. V. Brown, 15 520 U.S. 397, 404 (1997 (“in Monell and subsequent cases, we have 16 required a plaintiff seeking to impose liability on a 17 municipality under § 1983 to identify a municipal ‘policy’ or 18 ‘custom’ that caused the plaintiff's injury”). As for Bricker, 19 he can be held liable under Section 1983 “only for his … own 20 misconduct,” he cannot be made to answer for the torts of those 21 under his supervision. Iqbal, 556 U.S. at 677. 22 23 1. 24 [A] constitutional violation may arise from training or supervision where the training or supervision is sufficiently inadequate as to constitute “deliberate indifference” to the righ[t]s of persons with whom the police come into contact. City of Canton v. Harris, 489 U.S. 378 (1989). Canton dealt specifically with inadequate training. We see no principled reason to apply a different 25 26 27 28 Inadequate supervision – Prior shooting incident. 39 1 standard to inadequate supervision. 2 Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989). 3 Plaintiffs assert that Bricker and the City (collectively, 4 “Bricker”), knew of repeated acts of misconduct by Moody, but 5 that they were “deliberately indifferent” to the constitutional 6 harms that could result from allowing Moody to continue to do 7 police work armed with his gun. According to plaintiffs, Bricker knew that Moody had been 8 9 See Complaint ¶¶ 47 & 51. involved in a prior shooting in which he fired an “excessive” 10 number of bullets into a car tire, yet Bricker allowed a 11 “trigger-happy” Moody to go back to police work with his gun. 12 According to plaintiffs’ argument, Bricker “ignored a pattern of 13 Defendant Moody using poor tactical judgment and even poorer 14 trigger control in deliberate indifference to the citizenry they 15 are sworn to protect.” 16 that “[t]he evidence reveals” that Moody was involved in a 17 shooting in which he “shot an excessive amount of times” at a 18 tire “that he was near to,” and that “[e]yewitnesses” criticized 19 Moody, saying that the shooting was unnecessary and excessive. 20 ECF No. 97. ECF No. 97 at p.16. Plaintiffs assert In moving for summary judgment, defendants presented 21 22 admissible evidence relating to that incident. 23 evidence, in May 2010, Moody and his partner attempted to arrest 24 a suspect who had driven a stolen car into the parking lot of a 25 motel. 26 the process, threatened to run over Moody’s partner. 27 response, Moody “shot the tire out of the vehicle to disable it.” 28 Id. Bricker Decl. at 2. According to that The driver attempted to flee, and in Id. In Bricker and the police department “evaluated” the incident, 40 1 and concluded that Moody’s “use of force in that instance was 2 justified.” 3 not show a lack of proper supervision by Bricker. 4 Id.; DSUF ¶ 6. This evidence, if undisputed, does Plaintiffs have offered no admissible evidence to dispute 5 the account presented by defendants. 6 newspaper accounts purporting to report on witness accounts of 7 the incident. 8 “double hearsay.” 9 Educational Equality League, 415 U.S. 605, 618 & n.19 (1974) 10 (“Whether the testimony reflected the newspaper account or a 11 television report, it was nonetheless hearsay,” indeed, it was 12 “double hearsay”). 13 the deposition questions that plaintiffs’ counsel posed to 14 Bricker about the newspaper accounts of witnesses’ purported 15 accounts. 16 be quoting from the newspaper article, but instead he is merely 17 summarizing what he interprets the article to be saying. 18 Clearly, this is not admissible. 19 Plaintiffs offer, at most, At best, this is hearsay within hearsay, or See Mayor of City of Philadelphia v. What plaintiffs actually offer, however, is Indeed, plaintiffs’ counsel does not even purport to Even if the questions about the newspaper accounts of the 20 purported witnesses’ statements could somehow be converted into 21 admissible evidence,39 it does not support their assertion that 22 39 23 24 25 26 27 28 As inadmissible as this “evidence” is, it is not even accurately recounted by plaintiffs in their opposition. Nothing in the deposition indicates that any purported witness described the shooting as “excessive.” To the contrary, one of the supposed witnesses was the motel manager, whose only comment, apparently, was that he was upset that there was a shooting at his motel. The other witness apparently felt that no amount of shooting was justified because, he felt, the suspect could not have gotten away. However, there is no indication that this purported witness knew that the suspect, rather than trying to get away, was trying to run down Moody’s partner. 41 1 Bricker ignored a “pattern” of “using poor tactical judgment and 2 even poorer trigger control.” 3 shooting does not a “pattern” make. 4 no evidence at all that the prior shooting involved an excessive 5 number of shots fired or was otherwise improper. 6 contrary, the only evidence here shows that Moody did not shoot 7 at the driver, he shot at the tire, a plainly restrained response 8 to a car that had already rammed a patrol car and was in the 9 process of trying to run over Moody’s partner. See ECF No. 97 at p.16. One prior Moreover, plaintiffs offer To the Moreover, the 10 only review of this shooting was conducted by the police 11 department, including Bricker, which concluded that the shooting 12 was proper and justified. 13 This is the sole basis for plaintiffs’ assertion that the 14 City and Bricker are subject to supervisorial liability under 15 Section 1983. 16 at 1235 (reports showed officers were competent to remain on 17 duty, thus evidence fails to show supervisor acted with 18 deliberate indifference in not removing them from duty). 19 20 21 22 It is plainly insufficient. See Davis, 869 F.2d To the degree Claim 3 is predicated upon supervisory liability, defendants are entitled to summary judgment. 2. Inadequate training. Plaintiffs base their “inadequate training” theory on 23 Moody’s performance in firearms tests. 24 discussed above, shows that on three separate occasions – May 12, 25 2008, December 7, 2010 and February 9, 2011 – Moody failed on the 26 requalification exam (that is, flunked all three attempts), and 27 28 42 The undisputed evidence, 1 then passed the remedial exam.40 2 repeated failures, followed by passes on remediation, Moody was 3 never required to undergo additional or remedial training on his 4 firearm.41 5 It appears that despite these Viewing this evidence in the light most favorable to 6 plaintiffs, a reasonable jury could find that the City and 7 Bricker inadequately trained Moody by permitting him to 8 repeatedly keep re-taking his firearm exam until he passed, 9 rather than requiring additional training when he failed. 10 11 Defendants’ motion for summary judgment on Claim 3, to the degree it is predicated upon inadequate training, will be denied. 12 3. 13 Ratification. Plaintiffs’ ratification theory is predicated upon the 14 after-the-fact statements by Bricker that the shooting was 15 justified and was in accordance with police department policy. 16 This theory cannot prevail after Iqbal. 17 have caused the violation, not merely approved it after the fact. 18 There is no evidence of conduct on Bricker’s or the City’s part 19 that indicated that they approved of any conduct by Moody or 20 anyone else that could have lead to the excessive force allegedly 21 used here. 22 Bricker’s conduct must Defendants are entitled to summary judgment on plaintiffs’ 23 40 24 There is no evidence in the record that Moody ever failed to qualify followed by a failure to pass the remedial exam. 25 41 26 27 Defendants do not address the proffered, and apparently undisputed, evidence regarding Moody’s repeated failures, instead referring only to the February 2011 failure as the only one. Nor do defendants assert that the cited deposition testimony was inaccurate or mistaken in any way. 28 43 1 ratification theory of liability. 2 C. 3 Section 52.1 of the California Civil Code provides a right Claim Six – Cal. Civ. Code § 52.1. 4 of action to a person if his exercise or enjoyment of federal or 5 state rights is interfered with by anyone by “threats, 6 intimidation, or coercion.”42 7 this claim making exactly the same legal argument they made, and 8 that this court rejected, in their most recent motion to dismiss. 9 See Motion To Dismiss of December 21, 2011 (ECF No. 27) at p. 14 Defendants seek summary judgment on 10 (arguing that there is no claim where “‘the right [allegedly] 11 interfered with is the right to be free of the force … that was 12 applied’”); Order of February 23, 2012 (ECF No. 35) at pp. 30-32. 13 Defendants have presented no undisputed facts that would change 14 the outcome here, their argument is just a legal one that ignores 15 this court’s prior decision, which is the law of the case. 16 This court previously denied defendants’ motion to dismiss 17 the Section 52.1 claim, concluding that “[t]he elements of a 18 Section 52.1 excessive force claim are essentially identical to 19 those of a § 1983 excessive force claim.” 20 Without referencing that conclusion, defendants now argue that 21 “[t]he better reasoned cases hold that section 52.1 claims may 22 not ‘merely duplicate [plaintiffs'] section 1983 excessive force 23 claim.’” 24 this court should reconsider its earlier decision. 25 ECF No. 80-1 at p.33. ECF No. 35 at p.31. Nor have defendants argued that Defendants’ motion for summary judgment on this claim will 26 27 42 Whitney Duenez as successor-in-interest to the decedent, is the sole plaintiff for this claim. 28 44 1 be denied. 2 D. 3 Plaintiffs’ seventh claim alleges liability for negligence Claim Seven – Negligence – Wrongful Death. 4 in connection with the shooting and the failure to provide 5 medical care to decedent. 6 judgment on the failure to provide medical care asserting only 7 “as discussed above, … there was no duty on the officers to 8 perform medical care, and the absence of personally providing 9 medical care after medical care had been summoned did not cause 10 Defendants seek partial summary Decedent any damages.” 11 The elements of a negligence cause of action are the 12 existence of a legal duty of care, breach of that duty, and 13 proximate cause resulting in injury. 14 220 Cal. App. 4th 994, 998 (2nd Dist. 2013). 15 have the burden of proof on each element at trial. 16 plaintiffs have presented no evidence of any kind on proximate 17 cause, defendants are entitled to summary judgment on this claim, 18 without regard to the other elements. 19 Castellon v. U.S. Bancorp, Plaintiffs will Because At trial, plaintiffs will have the burden of showing that 20 defendants’ failure to personally provide medical attention – 21 after summoning medical assistance – caused some injury to the 22 decedent. 23 burden by pointing out the complete lack of evidence that 24 decedent – who Moody had shot thirteen times at close range – was 25 further injured in any way by Moody’s subsequent failure to 26 render personal aid beyond immediately summoning medical help.43 Here, defendants have met their summary judgment 27 43 28 “[T]he moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle Corp., 45 1 Plaintiffs have not provided evidence that Moody had the 2 capability of providing personal medical assistance, or that his 3 failure to do so caused any additional injury. 4 plaintiffs do not address the issue. 5 Moody had a duty, under California law, to render aid. 6 they are correct, with no evidence showing causation, that is not 7 enough to avoid summary judgment. 8 9 Indeed, Plaintiffs argue only that Even if Defendants’ motion for summary judgment here will be granted. 10 E. Claim Eight – Intentional Infliction of Emotional Distress.44 11 12 Decedent’s widow, Whitney Duenez, alleges that Moody 13 intentionally inflicted emotional distress on her, through all 14 the conduct recounted above. 15 The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the plaintiff's extreme or severe emotional distress. “[O]utrageous conduct” is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant's conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability. 16 17 18 19 20 21 22 23 24 Yun Hee So v. Sook Ja Shin, 212 Cal. App. 4th 652, 671 (2nd 25 26 627 F.3d at 387. 27 44 Defendants do not seek summary judgment on the Fifth Cause of Action, for Negligent Infliction of Emotional Distress. 28 46 1 Dist. 2013) (citations and internal quotation marks omitted). 2 Moody seeks partial summary judgment on the claim to the 3 degree it is predicated upon his failure to personally render 4 medical assistance, pulling decedent’s body away from the truck, 5 handcuffing decedent, and searching decedent.45 6 Plaintiffs oppose the motion, arguing that shooting the 7 decedent, “dragging” his body, manipulating his body, handcuffing 8 him, searching him, and “standing by” without offering personal 9 medical assistance is outrageous conduct beyond the pale of a 10 civilized society. 11 ECF No. 97 at 30. Plaintiffs however, have already conceded that moving 12 decedent’s body away from the truck, and handcuffing him were 13 entirely reasonable and proper. 14 ¶¶ 16 & 17. 15 offer no evidence that Whitney Duenez saw, heard or was otherwise 16 aware of any of these activities. 17 show that any of these activities was directed toward her. 18 Christensen v. Superior Court, 54 Cal.3d 868, 905 (1991) (“[t]he 19 law limits claims of intentional infliction of emotional distress 20 to egregious conduct toward plaintiff proximately caused by 21 defendant”). 22 Plaintiffs’ Response to DSUF As for the body manipulation and search, plaintiffs Accordingly, she has failed to See As for the failure to personally render aid, plaintiff fails 23 to proffer any evidence at all that Moody had the ability to 24 render aid beyond what he did, namely, calling immediately for 25 medical assistance. Nor does she proffer any evidence that his 26 27 45 Moody does not seek partial summary judgment to the degree this claim is predicated upon the shooting of decedent. 28 47 1 failure to render aid was directed at her, as opposed to being 2 the natural consequence of his inability to render aid. 3 side argues the point, but it does not seem possible that a 4 person can intentionally inflict emotional distress by failing to 5 take action that he is not capable of taking.46 Neither 6 The defendants’ motion for partial summary judgment on 7 Claimn 8 will be granted as to all of Moody’s actions except for 8 the shooting itself. 9 F. 10 Relief – Injunctive Relief. Defendants seeks partial summary judgment on the claim for 11 injunctive relief based solely upon their argument that they are 12 entitled to summary judgment on both the Monell claim and the 13 Section 52.1 state claim. 14 entitled to summary judgment on the Section 52.1 claim. 15 16 As discussed above, they are not Accordingly, defendants’ motion for partial summary judgment on this issue will be denied. 17 G. 18 Defendants Moody and Bricker seek summary judgment on the Punitive Damages. 19 request for punitive damages, essentially because Moody’s conduct 20 was not “malicious, oppressive, or in reckless disregard of 21 Plaintiff’s rights.” 22 plaintiffs, Moody’s conduct meets the standard for punitive 23 damages. 24 Viewed in the light most favorable to Defendants’ motion for summary judgment on the request for 25 punitive damages will be denied. 26 46 27 Nor does plaintiff proffer evidence that Moody had a duty to equip himself with the ability to render aid under the circumstances presented. 28 48 1 V. 2 Plaintiffs move for summary judgment. 3 ANALYSIS – PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT The motion is based entirely on plaintiffs’ view of what the video shows. 4 As to whether the deputies violated the Fourth Amendment, two Supreme Court decisions chart the general terrain. Graham v. Connor, 490 U.S. 386 (1989), defines the excessive force inquiry, while Tennessee v. Garner, 471 U.S. 1 (1985), offers some guidance tailored to the application of deadly force. 5 6 7 8 “Graham sets out a non-exhaustive list of factors for evaluating [on-the-scene] reasonability: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” In Garner, the Supreme Court considered (1) the immediacy of the threat, (2) whether force was necessary to safeguard officers or the public, and (3) whether officers administered a warning, assuming it was practicable. See Scott v. Harris, 550 U.S. 372, 381–82 (2007). Yet, “there are no per se rules in the Fourth Amendment excessive force context.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) [cert. denied, 566 U.S. ___, 132 S. Ct. 2681 (2012)]. 9 10 11 12 13 14 15 16 17 18 George v. Morris, 736 F.3d 829,837-38 (9th Cir. 2013) (citation 19 omitted). 20 Plaintiffs are correct that the court is now required to 21 consider their motion (and defendants’) “in the light depicted by 22 the videotape.” 23 view the video in the light most favorable to the non-moving 24 party, if there is a genuine dispute about what is depicted. 25 Id., 550 U.S. at 380 (“[a]t the summary judgment stage, facts 26 must be viewed in the light most favorable to the nonmoving party 27 only if there is a “genuine” dispute as to those facts”). 28 Scott, 550 U.S. at 381. However, the court must Viewing the video in the light most favorable to Moody (and 49 1 in the light that will be presented by his attorney to the jury 2 at trial), Moody was shooting at a man who exited the truck with 3 something in his right hand. 4 knife and was reasonably believed by Moody to be a knife (and in 5 fact, an empty knife holder was found clipped to decedent’s belt, 6 and a knife was later found in the bed of the pickup truck, 7 possibly thrown by decedent during the chaos of the shooting). 8 Before the decedent exited the truck, Moody was shouting at him 9 not to move (which presumably meant, stay in the truck). That “something” could have been a The 10 decedent disobeyed the order (assuming he heard it), and attempts 11 to exit the truck. 12 Just before the shooting, and as decedent just starts to 13 exit the truck, Moody actually returns his gun to its holster. 14 However, upon trying to exit, the decedent makes a sudden jerking 15 move, which seems to prompt Moody to grab his gun again, demand 16 that decedent “drop the knife,” and start shooting. 17 motion was, no doubt, decedent first getting his leg caught in 18 the seat belt and losing his balance, but, viewed in the light 19 most favorable to Moody, he had no way of knowing this. 20 when Moody attempts to pull decedent’s body away from the car, he 21 is unable to, apparently because he was still unaware that 22 decedent’s leg was caught in the seatbelt. 23 The jerking Indeed, During the shooting, decedent’s body continually moved in an 24 erratic manner, occasionally turning away from Moody, such that 25 Moody could have believed that the decedent was reaching for the 26 knife or another weapon.47 The shooting continued until the 27 47 28 Indeed, Moody’s repeated failure on his firearms exams could well have contributed to his apparent doubt that he had really 50 1 decedent was completely still, but Moody did not empty his gun 2 into decedent (Moody had two bullets left). 3 The court finds that there is a genuine dispute about 4 exactly what the video depicts. 5 decedent with a knife, plaintiffs say it depicts decedent with a 6 tweezers. 7 Defendants say decedent kept reaching as if for a weapon, 8 plaintiffs say decedent’s body was simply responding to being 9 shot. Defendants say it depicts The video is not fine enough to resolve that dispute.48 The video does not resolve that dispute. Those are among 10 the main facts that must be resolved to determine whether the 11 shooting was a justified response to a dangerous parolee trying 12 to throw a knife at a police officer, or the unjustified police 13 killing of an unarmed man just trying to get out of a pickup 14 truck. 15 Plaintiffs’ motion for summary judgment on claims predicated 16 on the shooting will be denied in its entirety. 17 plaintiffs’ motion for summary judgment asks the court to view 18 the evidence in the light most favorable to them, the moving 19 parties. 20 of plaintiffs’ motion for summary judgment. 21 VI. 22 The remainder of That being improper, the court will deny the remainder ANALYSIS – PLAINTIFFS’ MOTION TO SEAL DOCUMENTS. Plaintiffs ask the court to seal certain documents, ECF Nos. 23 24 25 26 27 shot and disabled decedent, leading him to believe that the twitching body was still a threat, rather than an alreadydisabled person whose body was simply responding to each additional bullet it was hit with. 48 Nor does the court have the ability to slow the motion down, even assuming that such a viewing would be fair, considering that Moody experienced the incident in real time, not slow motion. 28 51 1 82 and 99, pursuant to the stipulated Protective Order entered in 2 this case (ECF No. 45). 3 ones with an interest in keeping the documents confidential, have 4 neither requested that the documents be sealed nor opposed 5 plaintiffs’ request.49 6 Defendants, who would appear to be the The public has a “general right to inspect and copy public records and documents, including judicial records and documents.” 7 8 9 Estate of Migliaccio v. Allianz Life Ins. Co., 686 F.3d 1115, 10 1119 (9th Cir. 2012), quoting Nixon v. Warner Commc'ns, Inc., 435 11 U.S. 589, 597 (1978). “This right extends to pretrial documents 12 filed in civil cases.” Id., citing San Jose Mercury News, Inc. 13 v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir. 1999). 14 Although the right is not absolute, the court must “‘start with a 15 strong presumption in favor of access to court records.’” 16 quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 17 1129 (9th Cir. 2003). Id., 18 Plaintiffs, as the party requesting to seal court records, 19 bear the burden of “providing ‘sufficiently compelling reasons’ 20 that override the public policies favoring disclosure.” 21 ruling on the motion, this court must “balance the competing Id. In 22 23 24 25 26 27 49 The Protective Order contemplates that defendants, not plaintiffs, would move to seal these documents, as they are marked confidential at the behest of defendants. ECF No. 45 ¶ 10 (“If plaintiffs wish to file with the Court any documents marked Confidential Material, plaintiffs shall notify defendants a reasonable period before hand to afford defendants an opportunity to seek to have the document sealed under Local Rule 141”). The parties have offered no explanation for why they have proceeded by relying on plaintiffs to make this motion. 28 52 1 interests of the public and the party seeking to seal judicial 2 records.” 3 F.3d 1172, 1176 (9th Cir. 2006). 4 it must “articulate a factual basis for each compelling reason to 5 seal.” 6 Id., quoting Kamakana v. City & Cnty. of Honolulu, 447 If the court seals the records, Id. Plaintiffs do not even attempt to meet their burden here. 7 Nor do they assert that any exception to the presumption of 8 public access applies here.50 9 general way, why the information is confidential – other than to They do not explain, even in a 10 say, it is stamped “confidential.”51 11 even infer a reason from the Protective Order, because that Order 12 does not explain what types of materials are subject to it; 13 materials are confidential simply because a party stamps them 14 with a “Confidential” stamp. Moreover, the court cannot 15 The request to seal will be denied. 16 VII. ANALYSIS – PLAINTIFFS’ MOTION TO RE-OPEN DISCOVERY. 17 Plaintiffs ask to re-open discovery so that they can depose 18 opposing counsel. 19 changed between the time he was interviewed by the police 20 investigators soon after the shooting, and the time he testified 21 years later at deposition. 22 50 23 24 25 26 27 Plaintiffs assert that one witness’s testimony They also assert that the witness – For example, the presumption does not apply to “judicial records ‘filed under seal when attached to a non-dispositive motion,’” or put another way, the presumption is rebutted in that circumstance. Midland, 686 F.3d at 1119, quoting Foltz, 331 F.3d at 1136 and citing Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). 51 For example, sealing documents might be appropriate if they disclose the name of decedent’s son, certain employment information, or private medical information. 28 53 1 Michael Henry – was provided a “manipulated” transcript of his 2 interview statement just before the deposition. 3 manipulated because it contained bolding and underlining that was 4 not included in the version of the interview transcript produced 5 to plaintiffs. 6 It was Plaintiffs have not shown that the difference in testimony 7 is material in any way. 8 to depose opposing counsel – rather than Henry – to find out why 9 there was a change in his story. 10 Nor have they demonstrated why they need In any event, the change in Henry’s story is not material, 11 and thus cannot support such an extraordinary remedy. 12 initial interview, Henry states that after decedent dropped his 13 knife, decedent himself picked it up and placed it in decedent’s 14 tool bag before decedent headed to Flores Court in the pickup 15 truck. 16 dropped his knife, Henry picked it up and handed it to decedent 17 before decedent headed to Flores Court in the pickup truck. 18 Plaintiffs do not explain why the difference in the story 19 matters. 20 is not who picked a knife up off the ground, but rather that 21 decedent had a knife, and that he took it with him to Flores 22 Court. 23 not explained and it is not obvious to the court. At his At his deposition, Henry states that after decedent It appears that the material point of Henry’s testimony The relevance of how it wound up in decedent’s hands is 24 Plaintiffs’ motion to re-open discovery will be denied. 25 VIII. SUMMARY 26 For the reasons stated above, the court orders as follows: 27 1. 28 Defendants are entitled to the following partial adjudication, based upon plaintiffs’ concessions, specifically, 54 1 that no claim in this action arises from defendants’ pointing a 2 gun at decedent’s widow, pulling decedent away from the pickup 3 truck, handcuffing decedent, searching the house on Flores Court 4 or detaining or arresting any non-parties to this action. 5 Accordingly, the portions of any claim that are predicated upon 6 that conduct are hereby DISMISSED WITH PREJUDICE; 7 2. Defendants are entitled to qualified immunity for the 8 search that was performed on decedent after the shooting. 9 Accordingly, the portions of any claims that is predicated upon 10 11 that conduct are hereby DISMISSED WITH PREJUDICE; 3. Defendants’ motion for summary judgment on Claim 1, to 12 the degree it asserts any state claim, is hereby DISMISSED WITH 13 PREJUDICE; 14 15 16 4. Defendants’ motion for summary judgment against Whitney Duenez on Claim 1 is GRANTED; 5. Defendants’ motion for summary judgment against D.D. 17 (as successor in interest to decedent’s estate) on Claim 1, is 18 DENIED to the degree it is predicated upon the Fourth Amendment, 19 and GRANTED to the degree it is predicated upon the alleged 20 denial of medical care; 21 6. Defendants’ motion for summary judgment on Claim 2, 22 relating to the claim for deprivation of familial relationships 23 is DENIED; 24 7. Defendants’ motion for summary judgment on Claim 3, for 25 Monell liability against the City and Bricker, is hereby DENIED, 26 and that claim may proceed to the degree it is predicated upon 27 inadequate training only; 28 8. Defendants’ motion for summary judgment on Claim 4 is 55 1 DENIED, however, the court sua sponte dismisses Claim 4 to the 2 degree it is predicated upon the deprivation of familial 3 association, brought by Whitney Duenez in her capacity as 4 successor in interest to the decedent’s estate; 5 6 7 9. Defendants’ motion for summary judgment on Claim 6, a claim under Cal. Civ. Code § 52.1, is hereby DENIED; 10. Defendants’ motion for summary judgment on Claim 8, by 8 Whitney Duenez for intentional infliction of emotional distress, 9 is GRANTED; 10 11 12 13 11. Defendants’ motion for summary judgment on all claims for injunctive relief is DENIED; 12. Defendants’ motion for summary judgment on the request for punitive damages is DENIED; 14 13. 15 its entirety; 16 14. Plaintiffs’ motion to seal documents is DENIED; 17 15. Plaintiffs’ motion to re-open discovery, so that they 18 Plaintiffs’ motion for summary judgment is DENIED in can depose defendants’ attorney, is DENIED. 19 IT IS SO ORDERED. 20 DATED: December 20, 2013. 21 22 23 24 25 26 27 28 56

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