Whitall v. Gutierrez et al

Filing 113

Order by Judge Charles R. Breyer granting 104 Motion to Vacate 50 Order on Motion for Summary Judgment.(crblc2, COURT STAFF) (Filed on 5/2/2022)

Case 3:18-cv-01376-CRB Document 113 Filed 05/02/22 Page 1 of 2

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND RICHARD WHITALL,

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Plaintiff,

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ORDER GRANTING MOTION TO
VACATE

v.

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United States District Court
Northern District of California

Case No. 18-cv-01376-CRB

S.D. GUTIERREZ, et al.,

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Defendants.

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Plaintiff Raymond Richard Whitall moves this Court to vacate its November 5,

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2019 order granting partial summary judgment to the Defendants. Mot. (dkt. 104). In that

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order, the Court held that Whitall could not pursue state claims on the basis of a February

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28, 2017 incident of alleged prison excessive force (“Event I”) because Whitall had not

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complied with the Government Claims Act (“GCA”). See Summary Judgment Order (dkt.

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50) at 2. Recently, the State of California discovered it had made a mistake: Whitall had in

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fact complied with the GCA as he had always claimed. Thus, the parties agree that the

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state claims that were viable prior to the summary judgment order should be reinstated.

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See Mot.; Opp. (dkt. 105); Reply (dkt. 111).

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The question is which claims were viable at that time. On July 30, 2019, the Court

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had dismissed all claims that arose from “Event II”—which involved a series of events

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involving many defendants over nine months—because those claims could not be joined

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with those in Event I. See Order on MTD (dkt. 29) at 2-4. But the Court permitted all

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claims arising from Event I to continue. See id. at 4 (“[T]his action will go forward but

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will be limited to plaintiff’s arguably cognizable claim from Event I that . . . [Defendants]

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used excessive force against him in violation of the Eighth Amendment and state law.”

Case 3:18-cv-01376-CRB Document 113 Filed 05/02/22 Page 2 of 2

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(emphasis added)); see also SAC (dkt. 8) ¶¶ 42-58 (allegations concerning Event I). The

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state claims that were viable prior to the summary judgment order were those pertaining to

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Event I and within the scope of the above sentence of the Court’s dismissal order.

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Defendants insist that only that the battery claim was viable. See SAC ¶ 98.

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Whitall contends that eight additional state claims pertained to the excessive force in Event

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I: Cruel and Unusual Punishment (SAC ¶ 94); Freedom of Speech (SAC ¶ 95); Use of

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Unnecessary Force (SAC ¶ 103); Dependent Adult Abuse (SAC ¶ 105); Battery Against

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Dependent Adult (SAC ¶ 114); Dependent Adult Endangerment (SAC ¶ 115); Intentional

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Infliction of Emotional Distress (SAC ¶ 116); Bane Civil Rights Act (SAC ¶ 117).
The Court finds that its prior order permitted all the above state claims except the

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United States District Court
Northern District of California

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Freedom of Speech claim, which lacked any remote connection to Event I. But

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Defendants may well be right that some of these other claims fail as a matter of law.1

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Because the only issue here is the motion to vacate, the Court does not reach anything else.

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However, the Court will permit another summary judgment motion as to these state claims

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at the close of discovery.

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For the reasons described above, the Court VACATES its prior summary judgment

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order and reinstates Whitall’s claims for (1) cruel and unusual punishment; (2) battery; (3)

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use of unnecessary force; (4) dependent adult abuse; (5) battery against a dependent adult;

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(6) dependent adult endangerment; (7) intentional infliction of emotional distress; and (8)

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the Bane Civil Rights Act.

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IT IS SO ORDERED.

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Dated: May 2, 2022
CHARLES R. BREYER
United States District Judge

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See Opp. at 7-9; see, e.g., Giraldo v. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 231, 256 (2008)
(“[W]e conclude there is no basis to recognize a claim for damages under article I, section 17 of
the California Constitution [the Cruel and Unusual Punishment provision].”); Davis v. Powell, 901
F. Supp. 2d 1196, 1211 (S.D. Cal. 2012) (“There is no implied private right of action under title
fifteen of the California Code of Regulations [which includes the regulation concerning use of
unnecessary force].”)
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