Azibo-boynton et al v. City of Pinole et al

Filing 26

JOINT CASE MANAGEMENT STATEMENT filed by Ifetayo R. Azibo-boynton, Zach Blume, City of Pinole, City of Richmond, Paul M. Clancy, Tim Couwels, Estate of Levi B, Boynton, Jr., Chris Fodor, Chris Magnus. (Willis, Linnea) (Filed on 4/6/2011)

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LINNEA N. WILLIS (SBN 221352) LAW OFFICE OF LINNEA N. WILLIS 7677 Oakport Street, Suite 1050 Oakland, CA 94621 Telephone: [phone] Fax: [phone] Attorneys for Plaintiffs IFETAYO R. AZIBO-BOYNTON and ESTATE OF LEVI B. BOYNTON, JR. PETER P. EDRINGTON, Esq. (074355) JAMES M. MARZAN, Esq. (133931) EDRINGTON, SCHIRMER & MURPHY LLP 2300 Contra Costa Boulevard, Suite 450 Pleasant Hill, CA 94523-3936 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants CITY OF PINOLE, TIM CAUWELS (inadvertently sued herein as TIM COUWELS), CHRIS FODOR, ZACH BLUME, PAUL M. CLANCY, CITY OF RICHMOND and CHRIS MAGNUS UNITED STATES DISTRICT COURT

15 NORTHERN DISTRICT OF CALIFORNIA 16 17 18 19 20 21 22 23 24 25 Plaintiffs, CITY OF PINOLE, a city governmental entity; CITY OF RICHMOND, a city governmental entity; TIM COUWELS, an individual; CHRIS FODOR, an individual; ZACH BLUME, an individual; PAUL M. CLANCY, an individual; CHRIS MAGNUS, an individual; and DOES 1-50, inclusive, IFETAYO R. AZIBO-BOYNTON, an individual; and the ESTATE OF LEVI B. BOYNTON, JR. by and through personal representative IFETAYO R. AZIBOBOYNTON, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. C10-04151

JOINT CASE MANAGEMENT CONFERENCE STATEMENT

Date: Time: Location:

April 14, 2011 10:00 a.m. Courtroom 3, 17 th Floor San Francisco, CA 94111

Honorable Judge Richard Seeborg

Defendants.

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Plaintiffs and all Defendants, by and through counsel Linnea N. Willis and James M. Marzan hereby submit this Joint Case Management Conference Statement. 1. JURISDICTION AND SERVICE

The jurisdiction of this court is properly invoked because the claims include federal and state claims. The federal claims include alleged violations under 42 U.S.C. §1983, 42 U.S.C. §1985, and the U.S. Constitution, including U.S. Const. amend. 4, U.S. Const. amend. 5, U.S. Const. amend. 9 and U.S. Const. amend. 14. All Defendants were served with the Complaint and have appeared. Defendants deny the allegations of Plaintiffs' Complaint and any wrongdoing. At present, neither Plaintiff nor Defendants are aware of issues pertaining to personal

10 jurisdiction or venue with respect to Defendants that have been served to date. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. FACTS AND PROCEDURAL STATUS A. Plaintiffs' Statement of Facts:

On September 12, 2009 at approximately 0109 hours, a call was made to 911 the CITY OF PINOLE reporting that a carjacking of a Jeep Grand Cherokee had occurred. Shortly, thereafter, a CITY OF PINOLE police car dispatched and spotted a vehicle fitting the description (hereinafter "Subject Vehicle"). The CITY OF PINOLE police car unit followed the Subject Vehicle at a slow speed and called for back-up as it was reported that there were weapons involved. The CITY OF PINOLE police officers pursued the suspects in the Subject Vehicle over a short distance into the CITY OF RICHMOND. Defendant TIM COUWELS instructed CHRIS FODOR, ZACH BLUME, DOES 1-50, and other Defendants not to turn on lights or sirens until back-up vehicles arrived. At approximately 1006 hours, Defendant TIM COUWELS, CHRIS FODOR, ZACH BLUME and DOES 1-50 cause Subject Vehicle to go into a ravine and off the road. Allegedly, one shot was allegedly shot from Subject Vehicle. At that point, Defendants COUWELS, BLUME, FODOR and DOES 1-50, in their capacity as police officers and employees for the CITY OF PINOLE POLICE DEPARTMENT and CITY OF RICHMOND POLICE DEPARTMENT, proceeded to fire approximately 32b rounds upon the vehicle. This was

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excessive in light of the fact that the car was ran off the road and was in a ravine. In addition, firing over 30 rounds without first trying to talk down the situation was also unnecessary and an excessive use of force. Defendants and each of them also used excessive use of force in attempting to apprehend Decedent LEVI B. BOYNTON, JR., an alleged suspect in a carjacking. None of the aforementioned Officer Defendants actually saw the Decedent shoot a weapon. Further, there is no evidence that Decedent fired any weapon upon the Officer Defendants. As a result of the unlawful pursuit, wrongful firing of shots, excessive force, and wrongful death of Decedent LEVI B. BOYNTON, JR., Defendants TIM COUWELS, CHRIS FODOR, ZACH BLUME, DOES 1-50 and their employer Defendants CITY OF PINOLE and

10 CITY OF RICHMOND, said Defendants caused the wrongful death of Decedent LEVI B. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BOYNTON, JR. As a result of Defendants' actions, Plaintiffs has suffered damages in an amount to be determined at trial. B. Defendants' Statement of Facts:

During the early morning hours of September 12, 2009, decedent and two of his friends, Charles Davis and DeVauria Clay-Holland, were driving within the CITY OF PINOLE to commit a carjacking and armed robbery. They saw a Jeep Cherokee parked in the parking lot of the McDonald's Restaurant in Pinole with an occupant inside; decedent and Davis then carjacked the vehicle at gunpoint while Clay-Holland waited parked nearby. They then drove the Jeep Cherokee to Clay-Holland's girlfriend's apartment where decedent, Davis and Clay-Holland ransacked the interior of the Jeep Cherokee for valuables. Decedent, Davis and Clay-Holland then decided to drive to San Francisco to commit a robbery. Corporal Fodor initially observed a vehicle matching the description of the carjacked vehicle in the area of San Pablo Avenue and Tara Hills Road in Pinole. Cpl. Fodor called in the vehicle's license plate to dispatch, which confirmed it was the vehicle stolen in the carjacking. Cpl. Fodor followed the Jeep Cherokee westbound on San Pablo Avenue but did not activate his emergency lights and siren at that time. Cpl. Fodor was instructed by Sergeant Tim Cauwels to wait until a sufficient number of units were on scene before affecting a traffic stop. Once Sgt.

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Cauwels and Officer Zach Blume arrived on scene, Sgt. Cauwels radioed to activate lights and sirens. After the police emergency lights and sirens were activated, the carjacked vehicle failed to stop and continued traveling on the Richmond Parkway and then on Atlas Road in the CITY OF RICHMOND. While on Atlas Road, the carjacked vehicle began to slow down and the vehicle doors opened at least once. According to Davis and Clay-Holland, a decision was made to slow the vehicle so all of the occupants could jump from the moving vehicle to evade arrest while the police continued to follow the Jeep Cherokee. The Jeep Cherokee slowed down but before decedent, Davis and Clay-Holland could jump from the vehicle, it went off of the roadway and into a ravine. Sgt. Cauwels exited his squad car and began moving towards the location of where

10 the Jeep Cherokee came to a rest. As he did, Sgt. Cauwels heard gunshots coming from the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ravine. direction of the carjacked vehicle; a bullet sailed by the left side of his head. In fear for his life and the lives of the other officers, Sgt. Cauwels returned fire. Cpl. Fodor and Officer Blume also returned fire, fearing for their lives and the lives of other officers. No Richmond Police officer discharged a weapon at any time and Chief Chris Magnus had no involvement in the events leading up to and precipitating the incident. Defendants deny that they caused the Jeep Cherokee to go off of the road and into a Defendants deny that they used excessive force in attempting to apprehend the

carjacking suspect, LEVI B. BOYNTON, JR. Shots were fired from the direction of the vehicle that decedent had carjacked. Officers were legally justified in returning fire in defense of themselves and others present. Defendants deny any wrongdoing, deny that any of decedent's or plaintiffs' civil rights were violated and deny that plaintiffs are entitled to any recovery or award of damages. C. PROCEDURAL STATUS

All Defendants were served on December 23, 2010. The Proof of Services/Summons Returned Executed are all filed on December 27, 2010. Defendants CITY OF PINOLE, TIM COUWELS, CHRIS FODOR and ZACH BLUME filed their Answer on January 13, 2011. Defendants CITY OF RICHMOND and CHRIS

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MAGNUS filed their Answer on January 24, 2011. Plaintiffs' Statement: Defendants objected to original Judge James Larson on January 13, 2011. The case was therefore reassigned to Honorable Judge Richard Seeborg on January 14, 2011. Defendants' Statement: Defendants did not consent to Magistrate Judge Larson as defendants understood the Judge will be retiring from the bench shortly. Defendants did not want the case reassigned to a different Magistrate Judge. This Case Management Conference will be the first Case Management Conference. 3. LEGAL ISSUES

The following causes of action are alleged by Plaintiff: First Cause of Action: Violation of Fourth Amendment of U.S. Constitution (42 U.S.C. §1983) 11 12 13 14 15 16 Sixth Cause of Action: Monell (42 U.S.C. §1983) 17 18 19 20 21 22 23 24 25 Seventh Cause of Action: Survival Action: Violation of Decedent's Civil Rights (42 U.S.C. §1983) Eighth Cause of Action: Negligence (California and Federal Law) Ninth Cause of Action: Negligent Supervision (California and Federal Law) Tenth Cause of Action: Intentional Infliction of Emotional Distress (California Law) Eleventh Cause of Action: Negligent Infliction of Emotional Distress (California Law) Twelfth Cause of Action: Violation of Decedent's Right to Enjoy Civil Rights (CA Civil Code §52.1) Thirteenth Cause of Action: Violation of Decedent's State Statutory Rights (CA Civil Code §51.7 Fourteenth Cause of Action: Assault and Battery Second Cause of Action: Conspiracy to Violate Decedent's Civil Rights (42 U.S.C. §1985) Third Cause of Action: Wrongful Death (42 U.S.C. §1983 and U.S. Constitution) Fourth Cause of Action: Wrongful Death (CA Code Civil Procedure §§377.60 and 377.61, the California Constitution and Applicable California Law Fifth Cause of Action: Violation of Plaintiffs' Civil Rights to Familial Relationship (42 U.S.C. §1983)

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Defendants deny decedent's/Plaintiffs' constitutional rights were violated and that the actions taken by the officers were lawful and proper under the circumstances. Defendants contend that the legal issues are whether the Defendants are entitled to Summary Judgment based on qualified immunity or other grounds. A. Plaintiffs' Statement of the Issues in Dispute:

6 1. Whether Defendant Officers wrongfully caused the death of decedent LEVI BOYNTON, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4. 24 25 MOTIONS There are currently no pending Motions. Defendants CITY OF RICHMOND and CHRIS MAGNUS intend to file a 12(b)(6) Motion to Dismiss before Trial. In addition, Defendants intend to file a Motion for Summary Judgment/ Adjudication, discovery motions as needed and Motions in Limine.
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JR. 2. Whether any shot truly was fired from the vehicle by any person. 3. Where was the shot fired from, and where was the shot directed at if a shot was fired. 4. Whether decedent LEVI BOYNTON, JR. fired the shot, if a shot was fired. 5. Whether Defendant Officers were justified in firing over 30 rounds on the Subject Vehicle, even if 1 shot was fired from the vehicle. 6. Whether Defendant Officers were justified in causing the death of LEVI BOYNTON, JR. 7. Whether Defendant Officers violated decedent's civil rights during the chase, after the vehicle was shot, after the Defendant Officers fired over 30 rounds on the Subject Vehicle, and in killing decedent LEVI BOYNTON, JR. B. Defendant's Statement Of The Principle Factual Issues In Dispute:

1. Whether the officers pursuit of the suspects, including decedent, was reasonable. 2. Whether decedent intentionally drove the carjacked vehicle off of the roadway. 3. Whether the officers discharged their weapon in self-defense and in the defense of others. 4. Whether the CITY defendants and their respective police chiefs failed to train, supervise and discipline their officers.

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Plaintiffs also anticipate discovery motions as needed and other pretrial motions. 5. AMENDMENT OF PLEADINGS

At this time, Plaintiff is not aware of any additional parties to be added. Plaintiff may dismiss some Defendants after receiving discovery and determining the responsible parties. After discovery, Plaintiff may also add additional parties. Plaintiff will most likely file an Amended Complaint to clarify current causes of action and add additional causes of action. Defendants will file an appropriate responsive pleading to Plaintiffs' Amended Complaint. 6. EVIDENCE PRESERVATION

10 Plaintiff has complied with the requirements of Rule 4. Defendants have stated that they 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 also complied with the Court's requirements. Plaintiff is unaware as to whether Defendants have truly preserved evidence, and have had various difficulties/challenges in obtaining information from Defendants prior to filing this lawsuit. Plaintiff is hopeful that Defendants have preserved all evidence, videos, statements, videos of statements, weapons, ballistics reports, vehicles, and all other evidence regarding this case. Defendants have been notified to preserve all potentially relevant evidence pertaining to the incident and, to counsel's knowledge, have done so. 7. DISCLOSURES

To date, the parties have not made any initial disclosures. The parties anticipate completing their Initial Disclosures per Rule 26 by the conference date, but may need additional time to complete Initial Disclosures. 8. DISCOVERY

To date, the parties have not taken any discovery. The parties have meet and conferred regarding discovery limits or a discovery schedule. Pursuant to Federal Rule of Civil Procedure 26(f), the parties anticipate on filing a written report outlining the discovery plan on April 28, 2011.

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Plaintiffs intend to serve interrogatories, document requests and request for admissions on Defendants. Plaintiffs also intend to depose each Defendant Officer, and will participate in the deposition of all other persons whom Defendants depose. Defendants contemplate serving interrogatories, document requests and requests for admissions on Plaintiffs. Defendants also intend on deposing Plaintiff IFETAYO R. AZIBOBOYNTON, John Frick (the victim of the carjacking), Charles Davis, DeVauria Clay-Holland, Deborah Carter (mother of Mr. Davis) and Shari and Stephen Holland (parents of Mr. ClayHolland). 9. CLASS ACTION

Not applicable to this case at this time. 10. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RELATED CASES

At this time, the parties are aware of other related cases other than the criminal cases pending against Charles Davis and DeVauria Clay-Holland in state court. 11. DAMAGES AND OTHER RELIEF SOUGHT

Plaintiff seeks general damages in excess of $20 million, special damages in excess of $20 million, for funeral and burial expenses, lost wages, punitive damages in excess of $20 million, for prejudgment interest on such damages as provided by law, all remedies available to Plaintiff as a matter of law based upon the causes of action and claims set forth, attorney fees incurred by Plaintiff, for costs of suit herein incurred and for such relief and further relief as the court deems proper. 12. SETTLEMENT AND ADR

Plaintiff requests that this matter be set for an early Settlement Conference with a Magistrate Judge, and also sent for Mediation thereafter closer to the Trial date. Defendants request a referral to Early Neutral Evaluation in light of the parties' positions on liability. 13. CONSENT TO ASSIGNMENT OF CASE TO MAGISTRATE JUDGE

Plaintiffs are amendable to assignment to magistrate judge, for all purposes and for Settlement Conference purposes.

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Defendants do not consent to a Magistrate Judge for all purposes. Defendants declined to proceed before a Magistrate Judge and requested that this case be reassigned to a United States District Judge. 14. OTHER REFERENCES

The parties have agreed that this case is not suitable for binding arbitration, a special master or a Judicial Panel on Multidistrict Litigation as this case needs to have a jury trial. 15. NARROWING OF ISSUES

The parties will conduct discussions regarding suggestions to expedite presentation of evidence at trial. At this time, it does not appear feasible to narrow the issues. Defendants believe the issues of liability and/or qualified immunity can be resolved by

10 summary judgment. Plaintiffs strongly disagree. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16. EXPEDITED SCHEDULE

Parties have agreed that due to the complex nature of this case that this case cannot be expedited with streamlined procedures. 17. SCHEDULING AND ESTIMATED LENGTH OF TRIAL

As to Federal Rule of Civil Procedure 26(f), a written discovery report outlining the discovery plan will be done on April 28, 2011. At this time we have not agreed upon any anticipated dispositive motions, pretrial conference or a trial date. The parties have met and conferred regarding proposed deadlines and court dates, including a trial date, but have not agreed upon an anticipated date at this time. Plaintiff believes it is premature to set a trial date at this time. If the Court sets the trial and pretrial deadlines as this Case Management Conference, Plaintiff requests that the trial be set no earlier than June 2012. Plaintiff estimates this trial will take approximately 10-20 days. Defendants believe the case will take 10-15 court days, depending on what issues have been adjudicated prior to trial. Defendants also believe that it is premature to set a trial date at this time as two key witnesses, Mr. Clay-Holland and Mr. Davis, are presently being criminally prosecuted.

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Defendants believe these depositions are critical but will likely be met with 5 th Amendment objections as the deponents' criminal cases are still pending. If the court is inclined to set a trial schedule, Defendants propose the following dates: Cut-off for non-expert Discovery: Designation of Experts: Cut-off for Expert Discovery: Last day file Dispositive Motions: Opposition to MSJ due by: Reply due by: Hearing of Dispositive Motions: January 31, 2012 February 17, 2012 March 19, 2012 April 6, 2012 April 20, 2012 April 27, 2012 May 9, 2012 June 18, 2012 August 6, 2012

10 Pre-trial Hearing: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DATED: April 6, 2011 /s/ James M. Marzan JAMES M. MARZAN Attorney for Defendants DATED: April 6, 2011 /s/ Linnea N. Willis LINNEA N. WILLIS Attorney for Plaintiffs Trial Date:

Plaintiffs are ok with the August 6, 2012 Trial date, but would propose the discovery cutoffs be much closer to the Trial date (within 30 days). Plaintiffs would also recommend that a Settlement Conference and Mediation Compliance deadline be set for the parties as set forth above. 18. TRIAL: JURY PROPERLY DEMANDED All parties have properly demanded a jury trial in the Complaint and in the Answers. 19. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS

The parties are currently unaware of any non-party interested entities or persons. RESPECTFULLY SUBMITTED,

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