Clark v. McGuire et al

Filing 40

ORDER signed by Judge Lawrence K. Karlton on 8/28/2014 FINDINGS AND RECOMMENDATIONS 36 are ADOPTED in FULL; and Defendant's 28 Summary Judgment motion is GRANTED as to defendant Karl Griffiths and DENIED as to defendant McGuire. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LOUREECE CLARK,

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No. 2:12-cv-2159 LKK KJN P

Plaintiff,
v.

ORDER

THOMAS McGUIRE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 3, 2014, the magistrate judge filed findings and recommendations herein which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Both parties have filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. One contention raised by defendant McGuire

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in his objections requires comment by this court.

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The magistrate judge’s recommendation that summary judgment be denied for defendant
McGuire rests in large part on the finding of a factual dispute between the parties as to whether
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plaintiff turned toward the officers or made gestures that made it look like he was going to shoot

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them as he exited a tool shed in a neighborhood backyard. See Findings and Recommendations

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(ECF No. 36) at 15. In the objections, defendant asserts that at his deposition plaintiff testified

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that he looked toward Officers McGuire and Griffiths “after exiting the shed when heard them

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announce “Freeze or I’ll shoot.” Def. McGuire’s Objs. (ECF No. 37) at 6. Defendant misreads

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plaintiff’s deposition.

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At his deposition, plaintiff testified that when he first had contact with defendants

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McGuire and Griffiths he was in a residential neighborhood walking down the street drinking

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some water and they were in a patrol car. Clark Dep. at 13:4-13. Plaintiff testified that he “ran

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from them because they were behind” him. Id. at 13:12. He testified that deputies “got out of the

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car and said, ‘Freeze or I’ll shoot.’ And they ran toward me with a 40-cal and a 12-gauge.” Id. at

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13:14-16; 14:24-15:1. Plaintiff testified that he glanced over his right shoulder and saw them

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running after him. Id. at 15:4-5. He ran, hopped a few fences, and ended up in the backyard tool

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shed. Id. at 15:8-19:16.

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He estimates that was in the shed for an hour or two. Id. at 21:23-15. While he was in the

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shed, he saw a dog and heard two “flash-bangs.” Id. at 21:15-16. He looked out of the shed

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through a gap in the shed door and saw a dog and four officers opening a fence to look into the

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backyard. Id. at 22:15-23:9. Plaintiff testified that after the officers opened the fence he didn’t

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see anything further because he was trying to get out of the shed. Id. at 24:2-8. He testified that

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he pushed open the shed door with his shoulder, “came out and made a left. And I screamed,

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with my hands in the air, ‘I’m unarmed,’ and I ran towards the fence. And all I heard was a shot .

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. .” Id. at 24:12-16. He then testified that when he came out of the shed all he heard was “‘Freeze

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or I’ll shoot,’” and he said that he was unarmed. Id. at 25:14-16.

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Plaintiff’s deposition testimony is that the officers said “Freeze or I’ll shoot” at two

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separate times. The testimony cited by defendant McGuire in his objections refers to plaintiff’s

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testimony about the first time he heard officers say “Freeze or I’ll shoot,” which was when,

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according to plaintiff, he was walking down the residential street. It was at that point, according

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to plaintiff, that he looked over his shoulder and saw the officers and “the only time that I actually
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got a chance to see what they looked like. Once I turned and ran, I never seen them again” until

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he saw defendant Griffiths at his criminal trial. Id. at 31:12-15. Contrary to defendant’s assertion

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in his objections, the cited testimony does not indicate that Clark looked toward the officers as he

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was exiting the shed. The magistrate judge correctly identified and described this factual dispute.

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Having carefully reviewed the entire file, the court finds the findings and
recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 3, 2014, are adopted in full; and

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2. Defendants’ summary judgment motion (ECF No. 28) is granted as to defendant

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Griffiths and denied as to defendant McGuire.
DATED: August 28, 2014.

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