Kaur et al v. City of Lodi et al

Filing 100

ORDER signed by Judge Garland E. Burrell, Jr. on 9/15/2015 DENYING 89 Motion to Dismiss. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUKHWINDER KAUR, individually
and as the successor in
interest for the Decedent
PARMINDER SINGH SHERGILL;
KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,

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Plaintiffs,

No. 2:14-cv-00828-GEB-AC

ORDER DENYING OFFICER
DEFENDANTS’ MOTION TO DISMISS
THE SECOND CLAIM OF THE THIRD
AMENDED COMPLAINT

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v.
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CITY OF LODI; CITY OF LODI
POLICE DEPARTMENT; MARK
HELMS, in his individual
capacity as the Chief of
Police for the City of Lodi;
SCOTT BRATTON, in his
individual capacity as a City
of Lodi Police Officer; ADAM
LOCKIE, in his individual
capacity as a City of Lodi
Police Officer,

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Defendants.
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Defendants Scott Bratton and Adam Lockie (the “Officer

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22

Defendants”)

seek

dismissal

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Sukhwinder

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Federal

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Plaintiff failed to “allege facts which plausibly state that the

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Decedent

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prior to the [Officer Defendants’] use of deadly force.” (Mem.

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P.&A. Supp. Officer Defs.’ Mot. Dismiss TAC (“Mot.”) 2:6–10, ECF

Kaur’s

Rule

of

Fourth
Civil

[Parminder

with

Amendment

Procedure

Singh

prejudice

Shergill

1

of

provocation

(“Rule”)

Plaintiff

claim

12(b)(6),

(‘Parminder’)]

was

under
arguing

seized

1

No. 89-1.)

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I.

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“To

survive

a

LEGAL STANDARD
motion

to

dismiss,

a

complaint

must

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contain sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.” Caviness v.

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Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir.

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2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “A claim

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has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

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(2007)).

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claim for relief . . . [is] a context-specific task that requires

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the . . . court to draw on its judicial experience and common

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sense.” Id. at 679.

“Determining

whether

a

complaint

states

a

plausible

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“For purposes of a motion to dismiss, we accept all

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well-pleaded allegations of material fact as true and construe

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them

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Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th

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Cir.

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conclusory

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unreasonable inferences.” In re Gilead Sciences Secs. Litig., 536

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F.3d 1049, 1057 (9th Cir. 2008) (citation omitted).

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25
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in

the

2012).

light

most

“[Further,]
allegations,

II.

favorable

the

court

nor

make

to

the

need

nonmoving

not

accept

unwarranted

party.”

as

deductions

true
or

FACTUAL ALLEGATIONS

The following factual allegations in the Third Amended
Complaint (“TAC”) concern the dismissal motion.

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Parminder was a veteran receiving treatment for post-

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traumatic stress disorder and schizophrenia, which manifested as
2

1

periodic

2

“experienced

the

symptoms

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since

When

manifesting

4

P[arminder]

5

exhibited

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himself or others.” (TAC ¶ 16.) “During his episodes of manifest

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mental illness, P[arminder] appeared not to comprehend what was

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being said to him or to be capable of responding appropriately.”

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(TAC ¶ 16.)

“depression

2003.

10

would
any

“On

and

become

violent

agitation[.]”
of

his

mental

symptoms

depressed

and

tendencies

January 25,

2014,

(TAC

or

of

2:2–5,

illness
his

He

periodically

mental

anxious,

but

threatened

P[arminder]

¶ 5.)

illness,
he

never

violence

manifested

to

the

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symptoms of his mental illness.” (TAC ¶ 19.) His family “called

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9-1-1

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Veteran’s Clinic[,]” explaining to the 9-1-1 dispatcher “that

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P[arminder]

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illness, acting ‘crazy’ and needed to be transported” to the

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Clinic. (TAC ¶¶ 20–21.)

to

request

was

assistance

disabled,

in

transporting

manifesting

symptoms

[him]

of

his

to

the

mental

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When the Officer Defendants arrived, the family told

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them that Parminder was not home, but “may be in the area” since

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he “routinely walked to the [p]ark in the morning[.]” (TAC ¶¶ 25–

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26.)

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Defendants told the family “that there was nothing they could do

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because P[arminder] was not home and had not threatened violence

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to himself or others.” (TAC ¶ 26.) They would, however, “try to

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talk with him” if they saw him. (TAC ¶ 27.)

After

the

family

requested

assistance,

the

Officer

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Next, the Officer Defendants drove to the park. (TAC

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¶ 27.) There, they “saw P[arminder] . . . walking through the

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[p]ark and attempted to detain and question him.” (TAC ¶ 29.)

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“When the [Officer Defendants] initially confronted P[arminder],
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he walked away from the officers, crossed the street . . ., and

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began to walk . . . towards his Family Home. He did not respond

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to

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continued to walk despite [their] attempts to get him to stop by

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following

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Defendants “drew their police-issued firearms and trained them on

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P[arminder], as he was facing away from [them] and continued to

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walk towards his Family Home.” (TAC ¶ 38.)

[the

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Officer

him

and

Defendants’]

yelling

at

verbal

him.”

directions . . .

(TAC

¶ 31.)

The

and

Officer

The Officer Defendants “continued to pursue P[arminder]

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in

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following, and brandishing firearms trained on P[arminder]. Due

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to

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increasingly upset and afraid, exacerbating the symptoms of his

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mental illness and post-traumatic stress disorder.” (TAC ¶ 39.)

an

aggressive

the

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[Officer

When

manner, . . .

by

Defendants’

shouting

actions],

“approximately

six

commands,

closely

P[arminder]

house-lengths

became

separate[d]

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P[arminder] from his Family Home” the Officer Defendants “yelled

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at P[arminder] to ‘Stop!’” (TAC ¶ 42–43.) The Officer Defendants’

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actions “caused P[arminder] to believe that he was not free to

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continue

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submitted to the show of authority and responded to [the Officer

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Defendants] commands by turning around to face them.” (TAC ¶ 44.)

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his

“As

movement

towards

P[arminder]

turned

his

to

Family

face

Home.

[them],

P[arminder]

he

held

his

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hands in the air and stated ‘Don’t shoot!’” (TAC ¶ 45.) “Before

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P[arminder] could complete the 180° turn to face [the Officer

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Defendants], [they] both opened fire on [him].” (TAC ¶ 46.)

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III.

DISCUSSION

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The Officer Defendants contend the allegations do not

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contain an essential element of a Fourth Amendment provocation
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1

claim;

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Defendants

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confrontation” that amounted to “an independent Fourth Amendment

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violation . . . .” (Mot. 7:5–12 (quoting Billington v. Smith, 292

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F.3d 1177, 1189 (9th Cir. 2002)).)

specifically,

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Plaintiff

“intentionally

The

Officer

or

fails

to

recklessly

Defendants

allege

the

provoke[d]

summarize

their

Officer

a

violent

argument

as

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follows: “nothing more is alleged than an attempted seizure by

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the Officer[ Defendant]s, a transient pause by [Parminder], and

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then the use of deadly force before [Parminder] could even turn

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around.” (Mot. 10:20–23.) The Officer Defendants further argue

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“[a]ny momentary hesitation or compliance does not constitute a

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seizure . . . .” (Mot. 10:17–18.) Overall, the Officer Defendants

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contend Plaintiff fails to allege the Officer Defendants touched

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Parminder or Parminder submitted to a show of authority, before

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the use of deadly force, and therefore Plaintiff “still fails to

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allege

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Amendment seizure occurred.” (Mot. 11:9–11.)

facts

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which

Plaintiff

plausibly

counters

state

at

that

least

a

preshooting

Fourth

one

independent

Fourth

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Amendment

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commanded Parminder to stop, and in response to their command, he

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stopped and turned to face them. (Pl.’s Opp’n to Mot. (“Opp’n”)

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14:12–14,

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disputes whether Parminder’s conduct during this time constituted

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a “transient pause” and contends a seizure “can occur immediately

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prior

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(citation omitted).)

14:20–22,

to

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violation

the

use

occurred

16:8–9,

of

when

ECF

deadly

the

No.

Officer

95.)

Defendants

Plaintiff

force . . . .”

(Opp’n

further

16:16–19

“Where a police officer ‘intentionally or recklessly
provokes

a

violent

confrontation,
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if

the

provocation

is

an

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independent Fourth Amendment violation, he may be held liable for

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his otherwise defensive use of deadly force.’” Espinosa v. City &

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Cnty.

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(quoting

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intentionally or recklessly violates a suspect’s constitutional

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rights,

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situation in which force was necessary and such force would have

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been legal but for the initial violation.” Id. at 538–39 (citing

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Billington, 292 F.3d at 1189). Here, the issue raised is whether

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Plaintiff alleges in her Complaint that Parminder was seized,

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before he was subjected to excessive force, by his submission to

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the Officer Defendants’ command that he cease moving away from

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them.

of

San

Francisco,

Billington,

then

the

598

292

F.3d

F.3d

violation

may

528,

at

be

538

1189).

a

(9th
“If

provocation

Cir.
an

2010)

officer

creating

a

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“[A] person has been ‘seized’ within the meaning of the

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Fourth Amendment only if, in view of all of the circumstances

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surrounding the incident, a reasonable person would have believed

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that he was not free to leave.” United States v. Mendenhall, 446

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U.S. 544, 554 (1980). “This determination is a necessary, but not

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a sufficient, condition for seizure.” United States v. McClendon,

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713 F.3d 1211, 1215 (9th Cir. 2013) (internal quotation marks and

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citation

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seizure by a show of authority and without the use of physical

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force,

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otherwise, there is at most an attempted seizure, so far as the

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Fourth Amendment is concerned.” Brendlin v. California, 551 U.S.

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249, 254 (2007).

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omitted).

but

there

Plaintiff

Moreover,

is

no

alleges

“[a]

seizure

the

police

without

Officer

officer

actual

Defendants

may

make

a

submission;

“yelled

at

P[arminder] to ‘Stop!’” (Compl. ¶ 43.) Plaintiff further alleges
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their “persistent harassment, stalking, shouting of commands, and

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brandishing of their firearms trained on P[arminder] eventually

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caused [him] to believe that he was not free to continue his

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movement towards his Family Home.” (Compl. ¶ 44, 77.)

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It

can

be

reasonably

inferred

from

the

TAC

that

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Parminder did not continue his movement towards his Family Home,

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i.e., he stopped. “Stopping when a police officer yells ‘stop’ is

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a submission to authority, and constitutes a seizure under the

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Fourth Amendment.” Slama v. City of Madera, No. 1:08-CV-810 AWI

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GSA, 2012 WL 2457722, at *5 n.8 (E.D. Cal. June 26, 2012) (citing

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California v. Hodari D., 499 U.S. 621, 626–27 (1991); United

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States v. Smith, 633 F.3d 889, 892 (9th Cir. 2011)). “[S]o long

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as the plaintiff alleges facts to support a theory that is not

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facially implausible, the court’s skepticism is best reserved for

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later stages of the proceedings when the plaintiff’s case can be

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[evaluated] on evidentiary grounds.” In re Gilead, 536 F.3d at

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1057.

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Therefore, Plaintiff has alleged facts which plausibly

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state Parminder submitted to authority and was seized before the

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Officer Defendants’ use of deadly force. Accordingly, the Officer

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Defendants’

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provocation claim (Second Claim) is DENIED.

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Dated:

motion

to

dismiss

September 15, 2015

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Plaintiff’s

Fourth

Amendment