Bonilla-Chirinos, et al. v. City of West Sacramento, et al.

Filing 40

MEMORANDUM and ORDER granting in part and denying in part 31 Motion for Summary Judgment signed by Senior Judge William B. Shubb on 7/25/17. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 GUILLERMO BONILLA-CHIRINOS and SANDRA HERNANDEZ, individually and as guardians ad litem of J.B., a minor, Civ. No. 2:15-2564 WBS EFB MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT Plaintiffs, 15 16 17 18 19 20 21 22 23 24 25 26 27 v. CITY OF WEST SACRAMENTO and police officers KENNETH FELLOWS, MICHELLE TATE, ANTHONY HERRERA, THOMAS MAGGIANO, JENNIFER GRILLAT, ERIC ANGLE, MATTHEW LUIZ, and DAVID STALLIONS, in their individual and official capacities, Defendants. ----oo0oo---Plaintiffs Guillermo Bonilla-Chirinos and Sandra Hernandez, individually and on behalf of their son J.B., brought this action against defendants the City of West Sacramento (“the City”) and West Sacramento police officers Kenneth Fellows, 28 1 1 Michelle Tate, Anthony Herrera, Thomas Maggiano, Jennifer 2 Grillat, Eric Angle, Matthew Luiz, and David Stallions,1 3 alleging, inter alia, that defendants used excessive force in 4 arresting them in violation of their Fourth Amendment rights. 5 (Compl. (Docket No. 1).) 6 for summary judgment. 7 I. (Defs.’ Mot. (Docket No. 31).) Factual and Procedural History 8 9 Before the court is defendants’ Motion On December 12, 2013, defendants approached plaintiffs’ residence with warrants for the arrest of Bonilla-Chirinos and 10 Hernandez. (See Decl. of Guillermo Bonilla-Chirinos (“Bonilla- 11 Chirinos Decl.”) ¶¶ 11-12 (Docket No. 35).) 12 issued based on an incident that occurred in May 2013 during 13 which Bonilla-Chirinos was involved in a physical altercation 14 with a representative from a repossession company who was 15 attempting to tow his car and Hernandez drove the car away before 16 the representative could tow it. The warrants were (See id. ¶¶ 3, 8-11.) 17 Upon approaching the front door of plaintiffs’ 18 residence, officer Fellows informed Bonilla-Chirinos and 19 Hernandez that defendants were police and had come with warrants 20 for their arrest. 21 stated that she would not open the door and requested that 22 Fellows read the arrest warrants to her. (Dep. of Kenneth Fellows at 35.) (Id.) Hernandez Fellows stated 23 24 25 26 27 28 1 The individual defendants are sued in their individual and official capacities. (Am. Compl. ¶ 2 (Docket No. 14).) The court will construe this action as brought against the individual defendants only in their individual capacities, as the City is named in this action. See Sherman v. Cty. of Maui, 191 F. App’x 535, 537 (9th Cir. 2006) (noting that claims against municipal officials in their official capacity are “effectively claims against the [municipality] itself”). 2 1 that he would not read the arrest warrants to her, and requested 2 again that she open the door. 3 Fellows then kicked the door open. 4 (Id.) She refused. (Id.) (Id.) Bonilla-Chirinos testifies that immediately upon seeing 5 defendants enter his residence, he “got on [his] knees,” “put 6 [his] hands up in the air,” and “said ‘I surrender.’” 7 Chirinos Decl. ¶ 23.) 8 Fellows “rushed up to [him] and basically tackled [him] by 9 grabbing [his] neck and [his] arm . . . and pulling [his] arm (Bonilla- He testifies that despite his surrender, 10 behind [his] back, and then slamming [him] face down to the 11 ground while driving [Fellows’] knee very violently and 12 forcefully into the small of [his] back.” 13 that Fellows “is a large and muscular man” and put his “entire 14 body weight into driving his knee into [Bonilla-Chirinos’] back.” 15 (Id.) 16 arrest in any way.” 17 (Id.) He testifies Bonilla-Chirinos testifies that he “did not resist the (Id.) Hernandez testifies that officer Tate placed her under 18 arrest by “violently grabb[ing], pull[ing,] and twist[ing her] 19 right arm behind [her] back,” then placing handcuffs on her. 20 (Decl. of Sandra Hernandez (“Hernandez Decl.”) ¶ 10 (Docket No. 21 36).) 22 . . . were hurting [her] wrists,” and Tate refused to loosen them 23 when she asked her to do so. 24 also “did not resist arrest in any way.” 25 She testifies that the handcuffs “were much too tight and (Id.) Hernandez testifies that she (Id.) During the arrest, defendants had their guns drawn. 26 (Dep. of Michelle Tate at 23.) Hernandez testifies that at one 27 point during the arrest, officer Herrera pointed his gun at J.B., 28 who was four years old at the time. 3 (Hernandez Decl. ¶ 11.) 1 Hernandez also testifies that after she was placed 2 under arrest, she asked officers Tate and Maggiano if she could 3 call a relative to come pick J.B. up from their residence, and 4 Tate and Maggiano denied her request. 5 (Id. ¶ 15.) After the arrest, defendants transported plaintiffs to 6 a police station. (Dep. of Sandra Hernandez (“Hernandez Dep.”) 7 at 116.) 8 J.B. to stay with relatives. 9 released from the police station approximately nine hours later, After arriving at the police station, defendants sent (See id. at 129-30.) 10 at which time she picked J.B. up from the relatives. 11 130-32.) 12 shortly thereafter. Hernandez was 13 (See id. at Bonilla-Chirinos was released from the police station (See id. at 130-31.) Plaintiffs filed this action in December 2015. 14 (Compl.) Citing the above facts and testimony, they bring the 15 following causes of action against defendants under 42 U.S.C. § 16 1983 (“section 1983”)2: (1) use of excessive force in arrest in 17 violation of the Fourth Amendment, (2) unreasonable search in 18 violation of the Fourth Amendment, (3) unjustified invasion of 19 privacy in violation of the Fourth Amendment, (4) deprivation of 20 the right to remain silent in violation of the Fifth Amendment, 21 and (5) deprivation of familial association in violation of the 22 Fourteenth Amendment. (Am. Compl. at 5-10 (Docket No. 14).) 23 24 25 26 27 28 2 Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .” 4 1 Defendants now move for judgment as to each of plaintiffs’ 2 claims. 3 (Defs.’ Mot.) II. Legal Standard 4 Summary judgment is proper “if the movant shows that 5 there is no genuine dispute as to any material fact and the 6 movant is entitled to judgment as a matter of law.” 7 P. 56(a). 8 of the action, and a genuine issue is one for which a reasonable 9 jury could find in favor of the non-moving party. Fed. R. Civ. A material fact is one that could affect the outcome Anderson v. 10 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 11 bears the initial burden of establishing the absence of a genuine 12 issue of material fact. 13 322-23 (1986). 14 that negates an essential element of the non-moving party’s case 15 or demonstrating that the non-moving party cannot produce 16 evidence to support an essential element for which it will bear 17 the burden of proof at trial. 18 The moving party Celotex Corp. v. Catrett, 477 U.S. 317, It can satisfy that burden by presenting evidence Id. Once the moving party meets its burden, the burden 19 shifts to the non-moving party to “designate specific facts 20 showing that there is a genuine issue [of material fact] for 21 trial.” 22 simply show that there is some metaphysical doubt as to the 23 material facts.” 24 Corp., 475 U.S. 574, 586 (1986). 25 scintilla of evidence . . . will be insufficient; there must be 26 evidence on which the jury could reasonably find for the [non- 27 moving party].” 28 Id. at 324. The non-moving party must “do more than Matsushita Elec. Indus. Co. v. Zenith Radio “The mere existence of a Anderson, 477 U.S. at 252. In deciding a summary judgment motion, the court must 5 1 view the evidence in the light most favorable to the non-moving 2 party and draw all justifiable inferences in its favor. 3 255. 4 and the drawing of legitimate inferences from the facts are jury 5 functions, not those of a judge . . . on a motion for summary 6 judgment . . . .” 7 III. Discussion 8 Id. at “Credibility determinations, the weighing of the evidence, A. 9 Excessive Force Claim i. 10 Id. Liability of Maggiano, Grillat, Angle, Luiz, and Stallions 11 Defendants argue, as an initial matter, that the court 12 should grant them judgment as to the liability of officers 13 Maggiano, Grillat, Angle, Luiz, and Stallions for use of 14 excessive force during the December 2013 arrest because “there 15 are no specific facts alleged regarding [those defendants’] 16 actions” during the arrest and plaintiff has merely “lump[ed]” 17 those defendants together with other defendants in discussing the 18 arrest. 19 (Defs.’ Mot., Mem. (“Defs.’ Mem.”) at 3.) The Ninth Circuit has held that a plaintiff may not 20 “lump all the defendants together” under a “team effort” theory 21 of liability, but must, instead, “base each individual’s 22 liability on his own conduct.” 23 295 (9th Cir. 1996). 24 plaintiffs neither point to any evidence indicating that 25 Maggiano, Grillat, Angle, Luiz, or Stallions used any force 26 against them during the December 2013 arrest, nor provide any 27 response to defendants’ request for judgment as to the liability 28 of those defendants for use of excessive force. Chuman v. Wright, 76 F.3d 292, In their Opposition to defendants’ Motion, 6 In light of 1 plaintiffs’ failure to cite any evidence as to the liability of 2 Maggiano, Grillat, Angle, Luiz, or Stallions for use of excessive 3 force or respond to defendants’ request for judgment as to those 4 defendants for use of such force, the court will grant judgment 5 to Maggiano, Grillat, Angle, Luiz, and Stallions as to 6 plaintiffs’ excessive force claim. 7 F.3d 1212, 1219 (9th Cir. 2007) (“A district court does not have 8 a duty to search for evidence that would create a factual 9 dispute.”); Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, See Bias v. Moynihan, 508 10 1115 (N.D. Cal. 2010) (“Plaintiff does not challenge defendants’ 11 assertion that she has no cause of action regarding California 12 Penal Code Section 4003 . . . in her opposition brief . . . . 13 Accordingly, the court grants summary judgment in favor of 14 defendants as to this claim.”). 15 ii. Monell Liability 16 Defendants next argue that the court should grant them 17 judgment as to the liability of the City for excessive force 18 because plaintiffs have not offered “any facts or evidence” 19 suggesting that the conduct complained of in their excessive 20 force claim--Fellows’ and Tate’s use of force and Herrera’s 21 pointing of a gun despite plaintiffs’ non-resistance--was 22 pursuant to City policy or custom. 23 Plaintiffs respond with the argument that such conduct occurred 24 because the City failed to train the individual defendants in 25 proper arrest procedures, and thus the City may be held liable 26 for the conduct under Monell v. Dep’t of Soc. Servs. of City of 27 N.Y., 436 U.S. 658 (1978). 28 32).) (Defs.’ Mem. at 7.) (See Pls.’ Opp’n at 17-20 (Docket No. 7 1 Under Monell, a city “may be held liable for [a police 2 officer’s section 1983] violation only if the . . . officer[’s] 3 conduct was a product of City policy or custom.” Menotti v. City 4 of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). A city’s 5 failure “to train [officers] about their legal duty to avoid 6 violating citizens’ rights may rise to the level of [city] policy 7 [or custom] for purposes of § 1983.” 8 U.S. 51, 61 (2011). 9 demonstrate “a conscious or deliberate choice” on the part of the Connick v. Thompson, 563 An individual asserting a Monell claim must 10 city to decline to train its police despite a need to do so, and 11 “the lack of training actually caused the constitutional harm or 12 deprivation of rights” that is at issue in the case. 13 Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014). 14 Flores v. Plaintiffs have not offered any evidence indicating 15 that the conduct complained of in their excessive force claim was 16 due to failure to provide adequate training on the City’s part. 17 The only evidence they cite in support of Monell liability for 18 their excessive force claim is Bonilla-Chirinos’ testimony that 19 Fellows “attack[ed] and seriously injure[d Bonilla-Chirinos] when 20 [he] had already surrendered and was on his knees with his hands 21 up.”3 22 unlawful force against Bonilla-Chirinos during his arrest does 23 not speak to whether Fellows used such force because the City 24 failed to provide him proper training. 25 26 27 28 (See Pls.’ Opp’n at 19.) 3 That Fellows may have used It is entirely possible Plaintiffs cite other testimony arguing that the warrants for their arrest and their criminal convictions were unlawful in the section of their Opposition discussing Monell liability. (See Pls.’ Opp’n at 17-19.) It is unclear how such testimony supports Monell liability as to their excessive force claim. 8 1 that in “attack[ing] and seriously injur[ing]” Bonilla-Chirinos 2 despite his having surrendered, Fellows acted contrary to his 3 training. 4 indicating that the conduct complained of in their excessive 5 force claim was due to failure to provide adequate training on 6 the City’s part, the court will grant judgment to the City as to 7 that claim. 8 9 Because plaintiffs have not provided any evidence iii. Merits of Excessive Force Claim Against Fellows, Tate, and Herrera 10 In light of the above discussion, the only defendants 11 remaining for purposes of plaintiffs’ excessive force claim are 12 Fellows, Tate, and Herrera. 13 as to those defendants are based on the merits of plaintiffs’ 14 excessive force claim. 15 Defendants’ arguments for judgment “Claims against law enforcement officers for the use of 16 excessive force during an arrest are analyzed under the Fourth 17 Amendment[] . . . .” 18 (E.D. Cal. 2014) (O’Neill, J.) (citing Graham v. Connor, 490 U.S. 19 386, 388 (1989)). 20 only such force during an arrest as is objectively reasonable 21 under the circumstances.” 22 2:09-1826 WBS GGH, 2010 WL 3238931, at *4 (E.D. Cal. Aug. 12, 23 2010) (citing Graham, 490 U.S. at 397). 24 force used during an arrest was “objectively reasonable” requires 25 “balancing of the amount of force applied against the need for 26 that force under the circumstances.” 27 790 F. Supp. 2d 1188, 1202 (E.D. Cal. 2011) (Wanger, J.) (citing 28 Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)). Arias v. Amador, 61 F. Supp. 3d 960, 974 “Under the Fourth Amendment, police may use Su v. Cty. of Sacramento, Civ. No. 9 Determining whether Atkinson v. Cty. of Tulare, The 1 ‘objective reasonableness’ inquiry “requires careful attention to 2 the facts and circumstances of each particular case, including 3 the severity of the crime at issue, whether the suspect poses an 4 immediate threat to the safety of the officers or others, and 5 whether he is actively resisting arrest or attempting to evade 6 arrest by flight.” 7 Graham, 490 U.S. at 396. “[T]he reasonableness of force used is ordinarily a 8 question of fact for the jury.” Smith v. City of Hemet, 394 F.3d 9 689, 701 (9th Cir. 2005) (quoting Liston v. County of Riverside, 10 120 F.3d 965, 976 n.10 (9th Cir. 1997)). 11 claims turn on the reasonableness of force used, motions for 12 summary judgment as to such claims are “sparingly” granted. 13 Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); see also 14 Smith, 394 F.3d at 701 (noting that excessive force claims 15 “almost always turn on a jury’s credibility determinations”). 16 Because excessive force In this case, plaintiffs have offered evidence 17 indicating that during the December 2013 arrest: (1) Fellows 18 “tackled” Bonilla-Chirinos and “dr[ove] his knee very violently 19 and forcefully into [Bonilla-Chirinos’] back,” (Bonilla-Chirinos 20 Decl. ¶ 23); (2) Tate “violently grabbed, pulled[,] and twisted 21 [Hernandez’s] arm behind [her] back” and “too tight[ly]” fixed 22 handcuffs on her wrists, (Hernandez Decl. ¶ 10); and (3) Herrera 23 pointed a gun at J.B., (id.). 24 indicating that other than Hernandez declining to open the door 25 when asked, plaintiffs did not resist arrest. 26 Chirinos Decl. ¶ 23; Hernandez Decl. ¶ 10.) 27 28 They have also offered evidence (See Bonilla- Viewing such evidence in the light most favorable to plaintiffs--including assuming that Fellows applied his knee and 10 1 Tate her arm and handcuffs with injurious force--the court finds 2 that such evidence is sufficient to create triable issues of fact 3 as to whether Fellows, Tate, and Herrera used excessive force 4 against Bonilla-Chirinos, Hernandez, and J.B., respectively, 5 during the arrest. 6 Ninth Circuit precedent. 7 F. App’x 702, 708 (9th Cir. 2012) (“Where there is no need for 8 force, any force used is constitutionally unreasonable.”); 9 Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013) 10 (where individuals “engag[e] in mere passive resistance,” use of 11 “non-trivial force” is unlawful); Barnard v. Las Vegas Metro. 12 Police Dep’t, 310 F. App’x 990, 992-93 (9th Cir. 2009) (applying 13 “excessive knee pressure on [arrestee’s] . . . back despite the 14 fact that he had surrendered and was not resisting arrest” 15 constitutes excessive force); Curiel v. Cty. of Contra Costa, 362 16 F. App’x 824, 830 (9th Cir. 2010) (“[O]verly tight handcuffs may 17 constitute excessive force.”); Miller v. Placer Cty., 84 F. App’x 18 973, 974 (9th Cir. 2004) (“[P]ointing a gun at a child when [he] 19 pose[s] no threat to officers constitute[s] excessive force.”). 20 iv. 21 The court’s finding is supported by ample See Moore v. Richmond Police Dep’t, 497 Qualified Immunity as to Fellows, Tate, and Herrera 22 As an alternative to judgment on the merits of 23 plaintiffs’ excessive force claim, defendants seek judgment as to 24 that claim for Fellows, Tate, and Herrera based on qualified 25 immunity. 26 (See Defs.’ Mem. at 12-13.) Qualified immunity shields government officials “from 27 liability for civil damages insofar as their conduct does not 28 violate clearly established statutory or constitutional rights of 11 1 which a reasonable person would have known.” 2 Callahan, 555 U.S. 223, 231 (2009) (internal citation omitted). 3 The Ninth Circuit has described the qualified immunity inquiry as 4 consisting of the following three-part test: 5 6 7 8 9 10 11 12 13 14 15 Pearson v. First, the court must ask whether[,] taken in the light most favorable to the party asserting the injury, the facts alleged show the officer’s conduct violated a constitutional right? If the answer is no, the officer is entitled to qualified immunity. If the answer is yes, the court must proceed to the next question: whether the right was clearly established at the time the officer acted. That is, whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. If the answer is no, the officer is entitled to qualified immunity. If the answer is yes, the court must answer the final question: whether the officer could have believed, reasonably but mistakenly . . . that his or her conduct did not violate a clearly established constitutional right. If the answer is yes, the officer is entitled to qualified immunity. If the answer is no, he is not. 16 Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006) 17 (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001)). 18 Viewed in the light most favorable to plaintiffs, the 19 evidence before the court indicates that Fellows used excessive 20 force against Bonilla-Chirinos by injuriously kneeing him in his 21 back despite his having surrendered. 22 use of police force when one has surrendered was clearly 23 established prior to 2013. 24 (citing, in 2012, Ninth Circuit and Supreme Court cases dating 25 from 1989 to 2010 for the proposition that “any force” is 26 excessive where no force is needed); see also Barnard, 310 F. 27 App’x at 992-93 (citing, in 2009, Ninth Circuit and Supreme Court 28 cases dating from 1989 to 2000 for the proposition that applying The right to be free from See Moore, 497 F. App’x at 708 12 1 “excessive knee pressure” on a non-resisting arrestee’s back is 2 unconstitutional). 3 plaintiffs was used, no reasonable officer could have believed 4 that applying such force to the back of Bonilla-Chirinos after he 5 surrendered was lawful. 6 qualified immunity to Fellows for use of excessive force. 7 Assuming the amount of force claimed by Accordingly, the court will not grant Viewed in the light most favorable to plaintiffs, the 8 evidence before the court also indicates that Tate used excessive 9 force against Hernandez by injuriously twisting her arm behind 10 her back and too tightly fixing handcuffs on her wrists despite 11 her having engaged in mere passive resistance by declining to 12 open the door to her house when asked. 13 use of non-trivial police force when one engages in mere passive 14 resistance was clearly established prior to 2013. 15 Blondin, 728 F.3d at 1093 (holding, in 2013, that “[t]he right to 16 be free from the application of non-trivial force for engaging in 17 mere passive resistance was clearly established prior to 2008”); 18 see also Curiel, 362 F. App’x at 830 (citing, in 2010, a 2003 19 Ninth Circuit case for the proposition that “overly tight 20 handcuffs may constitute excessive force”). 21 amount of force claimed by plaintiffs was used, no reasonable 22 officer could have believed that applying such force to twist the 23 arm and tighten the handcuffs of Hernandez, where she was not 24 actively resisting arrest, was lawful. 25 will not grant qualified immunity to Tate for use of excessive 26 force. The right to be free from See Gravelet- Again, assuming the Accordingly, the court 27 Lastly, the evidence before the court indicates Herrera 28 used excessive force against J.B. by pointing a gun at him during 13 1 the arrest. 2 pointed at him during an arrest was established prior to 2013. 3 See Miller, 84 F. App’x at 974 (holding, in 2004, that “the only 4 law in existence . . . [is] clear: pointing a gun at a child when 5 they posed no threat to officers constitute[s] excessive force”). 6 No reasonable officer could have believed that pointing a gun at 7 J.B. in the manner that plaintiffs claim, where he posed no 8 threat to the officer, was lawful. 9 not grant qualified immunity to Herrera for use of excessive 10 11 A non-threatening minor’s right to not have a gun Accordingly, the court will force. B. Unreasonable Search, Invasion of Privacy, and Right to 12 Silence Claims 13 Defendants argue that the court should grant them 14 judgment as to plaintiffs’ unreasonable search, invasion of 15 privacy, and right to silence claims because plaintiffs neither 16 cite any evidence supporting those claims nor provide any 17 response to their request for judgment as to those claims in 18 their Opposition. 19 Defendants are correct that plaintiffs neither cite any evidence 20 that appear to support those claims nor respond to defendants’ 21 request for judgment as to those claims in their Opposition. 22 Accordingly, the court will grant defendants judgment as to 23 plaintiffs’ unreasonable search, invasion of privacy, and right 24 to silence claims. 25 Supp. 2d at 1115. 26 27 28 C. (See Defs.’ Reply at 2 (Docket No. 38).) See Bias, 508 F.3d at 1219; Bolbol, 754 F. Familial Association Claim Plaintiffs’ final cause of action asserts that Tate and Maggiano unlawfully deprived Bonilla-Chirinos and Hernandez of 14 1 their Fourteenth Amendment right to care, custody, and control of 2 J.B. after they were arrested. 3 (Pls.’ Opp’n at 20-21.) “[T]he Fourteenth Amendment protects the fundamental 4 right of parents to make decisions concerning the care, custody, 5 and control of their children.” 6 57, 66 (2000). 7 [right] without notice and a hearing, except where the [child is] 8 in imminent danger.” 9 Cir. 2012) (citing Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. Troxel v. Granville, 530 U.S. Parents “cannot be summarily deprived of that Mueller v. Auker, 700 F.3d 1180, 1187 (9th 10 1997)). Where an officer’s interference with parents’ right to 11 care, custody, and control of their child was not justified by 12 emergency or due process of law, the parents may seek remedy 13 under section 1983. 14 654 (9th Cir. 1985). Kelson v. City of Springfield, 767 F.2d 651, 15 Plaintiffs have offered evidence that after Bonilla- 16 Chirinos and Hernandez were arrested, Hernandez asked Tate and 17 Maggiano if she could call a relative to come pick J.B. up from 18 their residence, and Tate and Maggiano denied her request. 19 Hernandez Decl. ¶ 15.) 20 imminent danger or due process that would appear to justify 21 denial of that request. 22 to whether Tate and Maggiano unlawfully deprived Bonilla-Chirinos 23 and Hernandez of their Fourteenth Amendment right to care, 24 custody, and control of J.B. after their arrest. 25 (See Defendants have pointed to no evidence of Accordingly, there is a triable issue as The right to care, custody, and control of one’s child 26 in the absence of imminent danger or a deprivation of parental 27 rights comporting with due process was clearly established before 28 2013. See Ram, 118 F.3d at 1310 (“In 1993, it was clear that a 15 1 parent had a constitutionally protected right to the care and 2 custody of his children and that he could not be summarily 3 deprived of that custody without notice and a hearing, except 4 when the children were in imminent danger.”). 5 officer could have believed that depriving Bonilla-Chirinos and 6 Hernandez custody and control of J.B. after their arrest, where 7 there was no emergency or due process for such deprivation, was 8 lawful. 9 (9th Cir. 2008) (holding that “no objective social worker could No reasonable See Bhatti v. Cty. of Sacramento, 281 F. App’x 764, 766 10 have believed” that depriving a parent custody and control of his 11 son without emergency or due process was lawful). 12 the court will not grant qualified immunity to Tate or Maggiano 13 as to plaintiffs’ Fourteenth Amendment deprivation claim. 14 Accordingly, The court will grant judgment to Fellows, Herrera, 15 Grillat, Angle, Luiz, Stallions, and the City as to plaintiffs’ 16 Fourteenth Amendment deprivation claim, however, as plaintiffs 17 conceded at oral argument that there is no evidence currently 18 before the court supporting the liability of those defendants for 19 deprivation of parental rights. 20 IT IS THEREFORE ORDERED that defendants’ Motion for 21 summary judgment be, and the same hereby is, GRANTED IN PART as 22 follows: 23 (1) Judgment shall be entered in favor of defendants 24 Maggiano, Grillat, Angle, Luiz, Stallions, and the City 25 on plaintiffs’ first cause of action; 26 (2) Judgment shall be entered in favor of all defendants on 27 plaintiffs’ second, third, and fourth causes of action; 28 and 16 1 (3) Judgment shall be entered in favor of defendants 2 Fellows, Herrera, Grillat, Angle, Luiz, Stallions, and 3 the City on plaintiffs’ fifth cause of action. 4 AND IT IS FURTHER ORDERED that in all other respects, 5 defendants’ Motion for Summary Judgment be, and the same hereby 6 is, DENIED. 7 Dated: July 25, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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