Hwang v. City and County of San Francisco et al

Filing 69

ORDER DENYING DEFERRED PORTION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER BIFURCATING TRIAL OF MUNICIPAL LIABILITY CLAIM; DIRECTIONS TO PARTIES. Defendants' motion for summary judgment, to the extent the Court deferred ruling thereon , is denied. Trial of the instant claims is ordered bifurcated, such that plaintiff's federal claims against defendants Serna and Artiga, as well as plaintiff's state law claims, will be conducted in advance of and separately from the feder al claim against the City. The parties are directed to include in their Joint Pretrial Statement, a joint proposal or, if necessary, separate proposals, on the timing of the trial on the federal claim against the City. Signed by Judge Maxine M. Chesney on September 30, 2008. (mmclc1, COURT STAFF) (Filed on 9/30/2008)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As set forth in the Court's September 15, 2008 order, although both the Second and Third Causes of Action each allege a federal claim for municipal liability, the parties discuss the Second and Third Causes of Action together and treat such causes of action as alleging a single municipal liability claim. 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ESTHER HWANG, v. Plaintiff, No. C-07-2718 MMC ORDER DENYING DEFERRED PORTION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; ORDER BIFURCATING TRIAL OF MUNICIPAL LIABILITY CLAIM; DIRECTIONS TO PARTIES United States District Court CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants / By order filed September 15, 2008, the Court denied defendants' motion for summary judgment to the extent defendants sought summary judgment on plaintiff's federal claims against officers Jesse Serna ("Serna"), and Nelson Artiga ("Artiga") and on plaintiff's state law claims. By said order, the Court deferred ruling on defendants' motion to the extent defendants sought summary judgment as to plaintiff's federal claim for municipal liability, in order to afford plaintiff the opportunity to file a supplemental opposition in response to new evidence offered in support of defendants' reply.1 Having read and considered the papers filed in support of and in opposition to the deferred portion of defendants' motion, the Court rules as follows. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In its September 15, 2008 order, the Court found triable issues of fact exist as to whether defendants Serna and Artiga arrested plaintiff without probable cause and as to whether said defendants used excessive force while making such arrest. Plaintiff's federal municipal liability claim is based on the theory that the City and County of San Francisco ("City") is liable to plaintiff because the City was aware, prior to the incident involving plaintiff, that multiple complaints of excessive force had been made against Serna, and that the City had not investigated such claims and/or had not disciplined Serna, or, alternatively, that the City's investigation of and/or imposition of discipline on Serna was of an insufficient nature. A claim that a municipality was "deliberately indifferent to the possibility that its police officers were wont to use excessive force" is cognizable under 42 U.S.C. 1983, and can be established by evidence the municipality was aware that complaints of excessive force against its officers had been made and that such complaints were "met with indifference for their truth." See Fiacco v. Rensselaer, 783 F. 2d 319, 326, 328 (2nd Cir. 1986) (affirming judgment on jury verdict against city, where jury could have reasonably inferred from evidence that city's "response to complaints of use of excessive force by City police officers was uninterested and superficial"). As stated by one appellate court, "deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents." See Vann v. New York, 72 F. 3d 1040, 1049 (2nd Cir. 1995). Here, defendants, in their moving papers, argue plaintiff has not "developed any evidence during discovery that would substantiate" plaintiff's municipal liability claim. (See Defs.' Mot. at 13:23-24.) Defendants do not, however, point to any deficiency in the record, whether in the form of a deficient response by plaintiff to a discovery request or otherwise. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 319-20, 326-27 (1986) (holding moving party met initial burden by submitting plaintiff's answer to interrogatory in which she failed to identify any witness that could support essential element on which plaintiff had burden of proof at trial). As the Ninth Circuit has held, although a party without the burden 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of proof at trial may meet its initial burden on summary judgment "by showing that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case," the moving party may not "use a summary judgment motion as a substitute for discovery." See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F. 3d 1099, 1105 (9th Cir. 2000) (internal quotation and citation omitted). Consequently, "[a] moving party may not require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence." See id. Here, defendants have, in essence, simply said plaintiff lacks evidence to prove a claim of municipal liability; consequently, defendants have failed to meet their initial burden on summary judgment, to the extent their motion is based on an asserted lack of evidence on plaintiff's part. As an alternative basis for summary judgment, a party without the burden of proof at trial can meet its initial burden on summary judgment by "produc[ing] evidence negating an essential element of the nonmoving party's case." See id. at 1106. Here, defendants, in support of their reply, offer a declaration that, defendants argue, is sufficient to establish that the City adequately investigated any "unnecessary force" complaints filed against Serna with the Office of Citizens Complaint ("OCC"), and that the City took appropriate measures in light of the results of such inquiry. (See Mahoney Decl.) As plaintiff points out in her supplemental opposition, however, the declaration on which defendants rely is insufficient to negate, as a matter of law, a showing that the City's investigation and responsive measures demonstrate deliberate indifference on the part of the City. In particular, defendants fail to explain, in any detail, the nature of the complaints submitted to the OCC, the nature of the investigation(s) into such complaints, and the nature of the discipline imposed. Further, although defendants offer evidence, undisputed by plaintiff, that the OCC sustained only a small fraction of such complaints, such showing, in and of itself, is not sufficient to foreclose, as a matter of law, plaintiff's ability to establish deliberate indifference. See, e.g., Fiacco, 783 F. 2d at 328 (holding "fact that none of the claims [of excessive force] had yet been adjudicated in favor of the claimant was not material; if the 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 City's efforts to evaluate the claims were so superficial as to suggest that its official attitude was one of indifference to the truth of the claim, such an attitude would bespeak an indifference to the rights asserted in those claims"). Consequently, to the extent defendants base their motion for summary judgment on their affirmative showing, defendants again have failed to meet their initial burden. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970) (holding, with respect to claim defendant and third party conspired to deprive plaintiff of civil rights, defendant seeking summary judgment "did not carry its burden because of its failure to foreclose the possibility" plaintiff could demonstrate existence of conspiracy).2 In sum, defendants have failed to show they are entitled to summary judgment on plaintiff's federal claim against the City. The remaining question is whether all of plaintiff's claims should be tried together to a single jury. The length of time it would take to present evidence pertaining to plaintiff's federal claims against the individual officers, as well as to present plaintiff's state law claims, would appear to be relatively short, given the essentially brief nature of the encounter on which the federal claims against such individual defendants, and the state law claims, are based, and the limited number of witnesses thereto. Plaintiff's federal claim against the City, by contrast, will require an evaluation of a potentially large body of evidence concerning events and witnesses almost exclusively separate and distinct from those implicated by plaintiff's other claims. See, e.g., Fiacco, 783 F. 2d at 329-31 (setting forth types of evidence presented therein on federal municipal liability claim). Further, because the great majority of the evidence relevant to the federal claim against the City will not be relevant to the claims against the individual defendants, submission of such evidence is likely to be unfairly prejudicial to such individual defendants, and, in particular, It remains to be seen whether plaintiff has any evidence to support a finding that the City's investigation and/or disciplinary decisions were so devoid of substance that they could support a finding of deliberate indifference, and all discovery deadlines have now passed. Nevertheless, because defendants did not meet their initial burden, plaintiff is not, at the present time, "required to come forward with suitable opposing affidavits." See id. at 160. 4 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to defendant Artiga. Moreover, if plaintiff is unable to establish her claim of excessive force, plaintiff's municipal liability claim would be foreclosed. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding plaintiff not entitled to "award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm"). Accordingly, the Court, "in the interest not only of convenience and judicial economy but also the avoidance of potential prejudice and confusion," finds it appropriate, pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, to bifurcate the trial such that the federal claims against the defendant officers, as well as the state law claims, will be tried prior to and separately from the federal claim against the City. See Quintanilla v. City of Downey, 84 F. 3d 353, 356 (9th Cir. 1996) (setting forth standard for bifurcation). CONCLUSION For the reasons stated above: 1. Defendants' motion for summary judgment, to the extent the Court deferred ruling thereon, is hereby DENIED; 2. Trial of the instant claims is hereby ordered BIFURCATED, such that plaintiff's federal claims against defendants Serna and Artiga, as well as plaintiff's state law claims, will be conducted in advance of and separately from the federal claim against the City; and 3. The parties are hereby DIRECTED to include in their Joint Pretrial Statement, a joint proposal or, if necessary, separate proposals, on the timing of the trial on the federal claim against the City. IT IS SO ORDERED. Dated: September 30, 2008 MAXINE M. CHESNEY United States District Judge 5

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