Moore v. City of Berkeley et al

Filing 118

ORDER setting briefing schedule. Plaintiff to file opposition brief by November 18, 2017. Defendant to file reply brief within 7 days of receiving opposition brief. (crblc2, COURT STAFF) (Filed on 10/18/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ARTHUR MOORE,
Plaintiff,

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United States District Court
Northern District of California

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ORDER SETTING BRIEFING
SCHEDULE

v.
CITY OF BERKELEY, et al.,
Defendants.

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Case No. 14-cv-00669-CRB

In this survivorship action brought on behalf of Kayla Moore (“Moore”), plaintiff Arthur

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Moore (“plaintiff”) claims that City of Berkeley police officers violated the rights of his deceased

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daughter under the Americans with Disabilities Act (“ADA”) during their encounter with her in

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the early-morning hours of February 13, 2013—an encounter that ended in Moore’s death. The

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Court previously denied the City’s summary judgment motion with respect to Moore’s ADA

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claims. See SJ Order (dkt. 71) at 11–13. In its pre-trial briefing, the City requests the Court to

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require plaintiff to clarify those claims so that it may adequately defend against them. Def.’s Trial

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Br. (dkt. 104) at 4.

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Plaintiff plans to proceed to trial on two theories: (1) that Berkeley officers arrested Moore

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due to her disability rather than any illegal conduct; and (2) that the officers failed to reasonably

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accommodate Moore in the moments leading up to and following her arrest. However, the

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particular factual assertions plaintiff plans to use to support these theories have been vague from

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the beginning. For instance, in his opposition to the City’s motion for summary judgment,

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plaintiff did not explain his argument that officers arrested Moore because of her disability, and

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maintained (incorrectly) that he “[did] not have to explain a reasonable accommodation.” SJ Opp.

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(dkt. 62) at 25.

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Even at this late pre-trial date, plaintiff remains vague about the specifics of his ADA

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claim. He does not explain in his pre-trial briefing which facts support his theory that the officers

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arrested Moore because of her disability. See, e.g., Lewis v. Truitt, 960 F. Supp. 175, 176–77

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(S.D. Ind. 1997) (denying summary judgment on ADA claim where plaintiff, a deaf man, claimed

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that officers arrested him for resisting law enforcement because he could not understand their

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commands); Jackson v. Inhabitants of Town of Sanford, No. CIV. 94-12-P-H, 1994 WL 589617,

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at *6 (D. Me. Sept. 23, 1994) (denying summary judgment where plaintiff alleged that officers

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arrested him for drunk driving because his speech was slurred due to a past stroke).

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Nor does plaintiff clearly articulate the reasonable accommodation he argues the City
should have provided Moore. He offers various explanations at various points in his briefing, but

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United States District Court
Northern District of California

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does not explain any of his proposed accommodations in enough depth to allow the Court to

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understand his arguments on the issues of (1) exactly what actions he would have had the officers

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take that they did not in fact take, and (2) why the officers’ failure to take his proposed actions

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amounted to a failure to reasonably accommodate.

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The Court construes the City’s request to clarify as a motion for summary judgment on

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plaintiff’s remaining claims. Given the importance of clarifying the issues before trial, the Court

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will entertain the motion.

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In addition, plaintiff has submitted declarations which tend to show that the City failed to

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timely produce a document regarding the Berkeley Police Department’s policy for complying with

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the ADA that was responsive to plaintiff’s discovery requests. Dkt. 115. Plaintiff states that the

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City’s failure to disclose this document hindered him in developing officer testimony, developing

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expert testimony, and performing discovery. For purposes of responding to the motion for

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summary judgment, plaintiff is permitted to file a supplemental declaration by its police-practices

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expert explaining how the officers failed to comply with the newly discovered ADA policy. See

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Fed. R. Civ. P. 56(d). The Court does not see the need to allow for additional discovery or

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depositions at this stage, given the detailed record of the officers’ actions. See dkt. 69. However,

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if plaintiff still believes that he is unable to present facts essential to justifying its opposition to the

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motion for summary judgment, he may submit a declaration to this effect along with his
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