Alford v. Humboldt County et al

Filing 58

ORDER by Judge Wilken granting in part and denying in part 35 Motion for Judgment as a Matter of Law (cwlc3, COURT STAFF) (Filed on 4/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JACQUELINE ALFORD,

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United States District Court
For the Northern District of California

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No. 09-01306 CW

Plaintiff,

ORDER GRANTING IN
PART AND DENYING
IN PART
DEFENDANTS' MOTION
FOR SUMMARY
JUDGMENT
(Docket No. 35)

v.
HUMBOLDT COUNTY; GARY PHILP; CITY
OF EUREKA; CHIEF GARR NIELSEN;
DEPUTY GREG BERRY; LIEUTENANT
GEORGE CAVINTA; SERGEANT WILLIAM
NOVA; SERGEANT BRYAN QUENELL;
DEPUTY JAMIE BARNEY; LIEUTENANT
DAVE MOREY; and DETECTIVE RICH
SCHLESIGER,
Defendants.
________________________________/

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Plaintiff Jacqueline Alford brings this lawsuit individually

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and as an heir and successor in interest to her son Peter Stewart

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who died in a fire on the afternoon of June 4, 2007, after a

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protracted standoff with law enforcement.

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for summary judgment on all of Ms. Alford's claims.

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has agreed to dismiss her third, fourth and fifth causes of

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action, which allege conspiracies and municipal liability.

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Opp. to Defs.' Mot. Summ. J. at 23.

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causes of action are dismissed, and thus no claims remain against

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Defendants have moved
Ms. Alford

Pl.'s

The third, fourth and fifth

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Humboldt County, the City of Eureka or Rich Schlesiger.1

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Alford opposes partial summary judgment on her first and second

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causes of action under 42 U.S.C. § 1983 for violations of the

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Fourth and Fourteenth Amendments.

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November 18, 2010.

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parties' submissions, the Court grants Defendants' motion in part

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and denies it in part.

The matter was heard on

Having considered oral argument and the

BACKGROUND

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Ms.

Multiple law enforcement agencies and officers were involved

United States District Court
For the Northern District of California

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in the events at the center of this lawsuit.

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several, but not all, as Defendants.

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Department (HCSD) Deputy Greg Berry and Yurok Tribal Police

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Department (YTPD) Officer Heather Landreneaux responded to the

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initial call for assistance, and made the first contact with Mr.

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Stewart.

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Tribal Police Department (HTPD).

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to a standoff, HCSD sought assistance from the SWAT teams of the

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Eureka Police Department (EPD) and the California Department of

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Corrections, now the California Department of Corrections and

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Rehabilitation (CDCR), at Pelican Bay.

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has named as Defendants: Sheriff Gary Philp, Lieutenant George

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Cavinta, Sergeant Bryan Quenell, Deputy Jamie Barney, Deputy Greg

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Berry, and Detective Rich Schlesiger.

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has sued Police Chief Garr Nielsen and SWAT Team Commander

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Sergeant William Nova.

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Ms. Alford has named

Humboldt County Sheriff's

The deputy and officer called for backup from the Hoopa
As the confrontation escalated

From the HCSD, Ms. Alford

From the EPD, Ms. Alford

Ms. Alford also named Lt. David Morey, but

Schlesiger appears to be named only as part of the alleged
conspiracies. There is no evidence connecting him with any of the
remaining claims.
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it is not clear of which law enforcement agency he is a member.

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Neither the law enforcement agencies nor officers from the YTPD,

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HTPD or the CDCR at Pelican Bay have been named as Defendants.

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For purposes of this motion, the events leading up to the

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police standoff and Mr. Stewart's death begin with his arrival at

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the home of Mathew Moore and Debra Brown on the morning of June 3,

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2007.

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childhood, but had not seen him in four or five years.

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Stewart arrived at their home on Bald Hill Road2 in an agitated

Both Mr. Moore and Ms. Brown had known Mr. Stewart since
Mr.

United States District Court
For the Northern District of California

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state, wearing a wetsuit top and long coat on a warm summer day.

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He entered the home unannounced.

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day, so he was lying in bed when Mr. Stewart arrived.

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climbed into the bed where Mr. Moore was sleeping.

Mr. Stewart

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was speaking delusionally and appeared dehydrated.

Mr. Moore

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thought that Mr. Stewart might be at the end of a methamphetamine

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high.

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Mr. Moore was feeling sick that
Mr. Stewart

Mr. Stewart's erratic behavior disturbed the family, so much

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so that Ms. Brown called Mr. Stewart's mother, Ms. Alford, for

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help.

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child, and it became clear that he was carrying a knife, Ms. Brown

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fled the home with her nine year old son and her nephew.

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Moore stayed behind with Mr. Stewart.

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After Mr. Stewart spoke about a violent dream and hurting a

Mr. Stewart told Mr. Moore that he had slit a person's throat

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and he felt evil.

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Mr. Moore did not believe him.

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Mr.

Because Mr. Stewart did not appear bloody,
At one point, Mr. Stewart took to

Mr. Moore refers to his home address as Hostler Ranch on
Bald Hill, while other witnesses refer to the area as Bloody Camp
Road.
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speaking into a medical device that Mr. Moore used for his sleep

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apnea, attempting to communicate with people who did not exist.

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Mr. Stewart insisted that he did not want to return to the county

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mental hospital, Sempervirens, where he was previously committed.

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Mr. Stewart asked Mr. Moore for guns, but Mr. Moore refused to

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provide him with any.

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around anymore, and he would not be taken back to Sempervirens

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alive.

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was able to convince him to sit down for a sandwich and a drink.

United States District Court
For the Northern District of California

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Mr. Stewart said that he did not want to be

Mr. Moore tried to calm Mr. Stewart down, and with time

After speaking with Ms. Brown, Ms. Alford immediately called

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a dispatcher for assistance.

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stopped taking his medication.

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ambulance instead of law enforcement to avoid scaring Mr. Stewart

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and escalating the situation.

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Mike Roberts of the HTPD respond to the scene in the event that an

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ambulance was unavailable.

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Stewart and his mental illness, and Ms. Alford believed that Mr.

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Stewart trusted him.

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Berry and Officer Landreneaux responded to the request for a

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welfare check.

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Landreneux's vehicle.

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Ms. Alford feared that her son had
She specifically requested an

Ms. Alford requested that Officer

Officer Roberts was familiar with Mr.

Officer Roberts was unavailable, so Deputy

Both officers drove to the scene in Officer

The Moore-Brown residence was located in a very remote area

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in the mountains where the HTPD and HCSD often shared

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jurisdiction.

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the driveway, they made contact with Ms. Brown who was driving in

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the opposite direction.

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cars over to talk.

As Deputy Berry and Officer Landreneaux approached

The officers and Ms. Brown pulled their

Officer Landreneaux spoke with Ms. Brown for

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about twenty minutes, and Deputy Berry spoke with Ms. Alford using

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Ms. Brown’s cell phone.

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The officers proceeded up the mountain, arriving at the

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residence at about 3:00 pm.

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further up the road there was another trailer residence.

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a dispute as to the manner in which the officers drove onto the

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property.

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driveway at a high rate of speed.

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officers' arrival frightened Mr. Stewart who had gained some

United States District Court
For the Northern District of California

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The home was a green trailer, and
There is

Mr. Moore insists that the officers drove up the
According to Mr. Moore, the

measure of calm for a moment.

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The officers parked about thirty feet in front of the

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trailer, exited the vehicle, and began walking towards the

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residence.

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front of the trailer, and Mr. Stewart stood at the top of the

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stairs leading to the front door.

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that his mother was worried about him, and he needed to go with

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them.

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okay, and they would not harm him.

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pulling out what appeared to be two butter knives, and screaming,

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“Welcome to the Dragon, motherfuckers!” a line inspired by an old

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Bruce Lee movie.

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presence, and demanded that they leave.

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weapons, and demanded that Mr. Stewart put down the knives.

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According to Mr. Moore, Deputy Berry screamed back at Mr. Stewart,

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“I’m about an inch from killing you.”

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At this point Mr. Moore was standing on the ground in

The officers told Mr. Stewart

The officers assured Mr. Stewart that everything would be
Mr. Stewart responded by

Mr. Stewart was very angry about the officers'
The officers drew their

Mr. Stewart put the knives in his waistband, went into the

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house and shut the door.

Inside the house, Mr. Stewart found Mr.

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Moore’s .22 rifle and pointed it at the officers from just inside
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the window.

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behind their vehicle.

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at the door, brandishing the rifle, repeatedly "dry-fired" the

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weapon, and then returned inside the house.

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the vehicle further away from the house in an attempt to gain a

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safer distance.

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repeatedly came out of the house to point and dry-fire the rifle

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at the officers.

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Mr. Moore warned the officers, and they sought cover
After a few moments, Mr. Stewart reappeared

Deputy Berry backed

The officers called for backup.

Mr. Stewart

Mr. Moore told the officers that he had other weapons and

United States District Court
For the Northern District of California

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ammunition in the house, locked in a gun safe.

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reportedly in the safe were an AR-15, an AK 27, a 12-gauge

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shotgun, a .45-caliber pistol, and possibly another .22 rifle.

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Mr. Moore said that the ammunition for the .22 rifle was not

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locked up, but was kept separate from the rifle, so Mr. Stewart

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would need to look for it.

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would find the rifle bullets and gain access to the other weapons

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and ammunition.

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rifle and what appeared to be a pistol.

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was probably a toy, because he did not own any pistols.

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Stewart continued to point the weapons at the officers, and

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pretended to fire at them.

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The weapons

The officers feared that Mr. Stewart

At one point, Mr. Stewart reappeared with the
Mr. Moore said that it
Mr.

No shots discharged.

About forty-five minutes after Deputy Berry and Officer

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Landreneaux requested assistance, other officers arrived: Mike

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Roberts, Willie Hostler, and Ed Guyer of the HTPD.

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told Deputy Berry that he had seen Mr. Stewart inside the house on

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a phone attempting to make calls.

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work at the time.

Officer Guyer

Mr. Moore’s landline did not

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Lt. Cavinta arrived at the scene at about 6:30 pm.

Shortly

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after arriving, Lt. Cavinta had a brief conversation with Ms.

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Alford, and with Mr. Stewart's father, Richard.3

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parents provided additional information about his mental health

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history.

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Ms. Alford arrived at the scene sometime in the afternoon, and

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remained throughout the night, and throughout the time of the fire

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that killed her son.

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Mr. Stewart in an attempt to calm him down and coax him out of the

Mr. Stewart's

It is not clear from her declaration exactly when, but

Ms. Alford repeatedly offered to speak with

United States District Court
For the Northern District of California

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house, but her offers were rejected.

She urged HCSD officials to

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give Mr. Stewart his medication, and to throw him a telephone.

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Her requests were not heeded.

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The HCSD had a SET team, the equivalent of a SWAT team.

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team was sent to the Moore-Brown home to provide assistance.

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According to Officer Landreneaux, the SET team arrived at about

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8:30 pm.

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and as the overall incident commander.

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Humboldt County Mental Health Department arrived at the scene and

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were briefed on the situation.

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The

Lt. Cavinta served as commander of the HCSD SET team,
Negotiators from the

Ms. Alford reported being at the scene during most of the

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standoff and never hearing any shots.

However, officers reported

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two sets of gunshots fired in the time period between about 6:30

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pm and 8:30 or 9:00 pm.

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at about 6:30 pm, which apparently hit two police cars.

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Barney reported a second set of shots when Mr. Stewart shot at him

Deputy Berry reported hearing four shots
Deputy

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Mr. Stewart's father's last name is not mentioned in the
record.
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and he returned fire at about 8:30 pm or 9:00 pm.

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Landreneaux and Deputy Berry heard the shots as they were leaving

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the scene, but did not witness them.

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hearing gunshots shortly after he arrived at 6:30 pm, while he was

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speaking with Ms. Alford, and then again at about 9:00 pm.

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bullet fragments were ever recovered, so there is no scientific

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evidence confirming gunshots or who fired weapons.

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Officer

Lt. Cavinta testified to

No

Overall, there is little information in the record detailing
what happened during the night and morning hours prior to the

United States District Court
For the Northern District of California

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fire.

At about 2:25 am, EPD Sgt. Nova arrived at the scene.

He

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served as commander of the EPD SWAT team.

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eight members, including two crisis negotiators, Sergeant Howden

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and Officer Wilson.

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the EPD’s chemical grenadiers.

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3:00 am.

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the window of the Moore-Brown residence.

His team consisted of

Officers Timothy Jones and Louis Altic were
Officer Jones arrived at about

Officer Jones reported seeing a television on through

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The EPD maintained its presence from then through the time

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when the fire consumed the residence, except for its two crisis

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negotiators who were released from the scene in the morning.

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HCSD had its own negotiators who relieved the EPD negotiators.

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Sgt. Nova testified that his negotiators did not speak or

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negotiate with Mr. Stewart because he and Lt. Cavinta jointly

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decided that, given the time of night and darkness, it was too

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risky to negotiate Mr. Stewart's surrender.

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The

Other officers made several attempts to contact Mr. Stewart

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over an intercom, but Mr. Stewart did not respond.

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negotiations took place between law enforcement and Mr. Stewart.

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Negotiators from the Humboldt County Mental Health Department were
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No

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present at the scene, and had been briefed.

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Cavinta, the HCSD’s command of the incident included two

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components, a tactical component, which he directed, and a

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negotiation component, directed by Lt. Knight.

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Cavinta’s testimony indicates that he exercised control that

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encompassed the negotiators at the scene.

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Health Department negotiators to repeat orders to Mr. Stewart to

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surrender.

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because Mr. Stewart never engaged in any dialogue.

United States District Court
For the Northern District of California

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According to Lt.

However, Lt.

He ordered the Mental

Lt. Cavinta testified that no negotiations occurred

Eventually, the HCSD and EPD deployed chemical agents into

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the residence.

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gas launch at about 11:00 am.

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tear gas, in the form of CS 37 millimeter canisters, was launched

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into the home.4

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how much tear gas was fired into the home.

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her declaration that she counted thirty-nine launches of tear gas

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canisters.

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According to Ms. Alford, she heard the first tear
Over the course of several hours,

There is little precise information about exactly
Ms. Alford stated in

After the CS 37 millimeter tear gas canisters failed to expel

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Mr. Stewart, Lt. Cavinta directed Deputy Barney to throw

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additional chemical agents into the home.

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Dep. at 25:4-17.

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directives as to the use of chemical agents.

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testified that, from the HCSD, only Deputies Barney and Taylor

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were authorized to deploy chemical agents into the home.

Id. at 20:16-18; Barney

Lt. Cavinta made the decisions and issued
Lt. Cavinta

Cavinta

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The parties provide little explanation of the various
chemical agents deployed during this incident, including their
definitions and characteristics, although EPD Sgt. Nova testified
that tear gas is a common term for CS. Nova Dep. at 17:25-18:3.
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Dep. at 1-8.

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Deputy Barney, Lt. Cavinta responded, "They were to deploy two

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cannisters [sic] -- one in window A and one in window B.

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cannisters [sic] were to be non pyrotechnic, OC or CS or CN,

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chemical agents."

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instructing Deputy Barney to launch a "triple-chamber CS grenade"

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into the home.

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When asked what specific directions he gave to

Cavinta Dep. at 20:19-23.

Both

Lt. Cavinta denied

Id. at 24:25-25:2.

At the time of the incident, Deputy Barney had been a member
of the SET team for four months.

He testified that the chain of

United States District Court
For the Northern District of California

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command provided that Lt. Cavinta issued his orders to Sgt.

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Quenell who then relayed the commands to himself and Deputy

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Taylor.

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Sgt. Quenell spoke with him and Deputy Taylor about "avoiding

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using any" pyrotechnics in the house.

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have any other discussion about the use of chemical agents.

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at 23:7-12.

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Barney Dep. at 21:3-14.

Deputy Barney testified that

Other than this, he did not
Id.

Deputies Barney and Taylor approached the trailer with a

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bullet-resistant blanket.

Cavinta Dep. at 31:14-16.

Deputy

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Barney came within two to three feet of the home and hand deployed

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one or two "aerosol OC grenades," a "stinger grenade" and two

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"triple chamber grenades" into window B.

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26:24-28:3.

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first, and then thirty minutes later discharged, in a matter of

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seconds, the stinger grenade and triple chamber grenades.

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26:24-27:24.

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effective than the earlier deployed CS 37 millimeter canisters

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because they produced more tear gas and smoke.

Barney Dep. at 24:1-7,

Deputy Barney discharged the aerosol OC grenades

Id. at

Deputy Barney testified that the grenades were more

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Id. at 25:9-10.

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Within ten minutes after Deputy Barney discharged the final

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grenades, smoke began escaping the house, but Mr. Stewart did not

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emerge.

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the record, it appears that it started at about 3:00 pm.

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Although the exact time the fire ignited is not clear in

Deputy Barney also referred to the "triple chamber grenade"

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as a "CS triple chamber grenade."

Id. at 26:8-12.

He testified

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that a "triple chamber grenade" is "a nonpyrotechnic grenade that

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is safe to be used indoors.

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Id. at 24:15-18.

It dispenses gas and CS chemical."

He was aware at that time that HCSD's policy

United States District Court
For the Northern District of California

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directed the use of pyrotechnic devices for outdoor crowd control.

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Id. at 17:2-7.

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his training as a chemical grenadier, he considered a "tri-chamber

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smoke grenade" a pyrotechnic device.

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EPD Officer Altic, however, stated that, based on

Altic Dep. at 31:7-15.

The Hoopa Tribal Volunteer Fire Department had arrived at the

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scene at about 8:00 or 9:00 am and stayed through the time the

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fire began and consumed the trailer.

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recently purchased fire truck.

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conversation with Hoopa Tribal Fire Chief Duane Sherman.

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the evidence as to time is vague, it appears that this

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conversation took place after the fire had already started.

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During that conversation, Lt. Cavinta concluded that it was too

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dangerous to send firefighters to stop the fire.

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concern that ammunition was "cooking off."

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the fire department at a distance.

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The department brought a

Lt. Cavinta reported a
Although

There was a

The HCSD and EPD kept

Raven Sherman was the sole member of the department who

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submitted a declaration in this action.

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fire truck was equipped with a "high technology striker cannon

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which allows the Fire Department to deploy a high pressure water
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According to her, the new

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flow to a burning structure while maintaining a safe distance from

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the dwelling that is on fire."
After the fire, Richie Marshall, one of Mr. Stewart's

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cousins, went to the scene to identify his body.

Mr. Stewart's

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body was lying next to a bathtub filled with water, and he was

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wrapped in wet sheets.

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officers were taking pictures and celebrating.

Marshall stated in his declaration that

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LEGAL STANDARD

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Summary judgment is properly granted when no genuine and

United States District Court
For the Northern District of California

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disputed issues of material fact remain, and when, viewing the

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evidence most favorably to the non-moving party, the movant is

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clearly entitled to prevail as a matter of law.

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56.

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Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1289 (9th Cir.

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1987).

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the party against whom summary judgment is sought.

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

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Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558

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(9th Cir. 1991).

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Fed. R. Civ. P.

Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986);

The court must draw all reasonable inferences in favor of
Matsushita

Material facts which would preclude entry of summary judgment

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are those which, under applicable substantive law, may affect the

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outcome of the case.

The substantive law will identify which

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facts are material.

Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986).

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DISCUSSION
I. Section 1983 Claim based on the Fourth Amendment
Under the Fourth Amendment, a police seizure must be
reasonable in order to survive the constitutional scrutiny
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implicated in a § 1983 claim.

Graham v. Connor, 490 U.S. 386, 395

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(1989).

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Fourth Amendment's reasonableness requirement."

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Torres, 610 F.3d 546, 550 (9th Cir. 2010).

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"Apprehension by deadly force is a seizure subject to the
Wilkinson v.

"Determining whether the force used to effect a particular
seizure is 'reasonable' under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion on

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the individual's Fourth Amendment interests against the

United States District Court
For the Northern District of California

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countervailing governmental interests at stake."

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at 396.

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sift through disputed factual contentions, and to draw inferences

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therefrom . . . summary judgment or judgment as a matter of law

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. . . should be granted sparingly."

Drummond v. City of Anaheim,

343 F.3d 1052, 1056 (9th Cir. 2003).

The proper application of

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Graham, 490 U.S.

"Because such balancing nearly always requires a jury to

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this objective test "requires careful attention to the facts and
circumstances of each particular case, including the severity of

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the crime at issue, whether the suspect poses an immediate threat

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to the safety of the officers or others, and whether he is

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actively resisting arrest or attempting to evade arrest by

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flight."

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Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471

U.S. 1, 8-9 (1985)).

The Fourth Amendment permits use of deadly

force to apprehend a person where there is "probable cause to

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believe the suspect poses a threat of serious physical harm."
Garner, 471 U.S.at 11.

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"The 'reasonableness' of a particular use of force must be

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judged from the perspective of a reasonable officer on the scene,

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rather than with the 20/20 vision of hindsight."

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addition, the calculus of reasonableness must embody allowance for

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the fact that police officers are often forced to make split-

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Id.

"In

second judgments--in circumstances that are tense, uncertain, and
rapidly evolving--about the amount of force that is necessary in a

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particular situation."

Wilkinson, 610 F.3d at 550.

However,

United States District Court
For the Northern District of California

10

"where it is or should be apparent to the officers that the

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individual involved is emotionally disturbed, that is a factor

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that must be considered in determining, under Graham, the

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reasonableness of the force employed."

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F.3d 1272, 1283 (9th Cir. 2001).

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Deorle v. Rutherford, 272

Liability under § 1983 extends to those actors who were

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integral participants in a constitutional violation, even if they
did not directly engage in unconstitutional conduct themselves.

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Boyd v. Benton Co., 374 F.3d 773, 780 (9th Cir. 2004).

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who does not enter an apartment, but stands at the door, armed

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with a gun, while others conduct the search, can be a full and

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active participant in the search, and therefore subject to

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liability.

Id.

An officer

On the other hand, an officer who is standing on

the sidewalk interviewing a witness, and does not participate in

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the unconstitutional search in any fashion, cannot be held liable.
Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009).

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A. Fourth Amendment Claim Against Deputy Berry

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Ms. Alford's claim against Deputy Berry alleges that he

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entered the property without sufficient cause and used excessive

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force by pointing his gun at Mr. Stewart when Mr. Stewart was

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"merely suffering from a psychiatric emergency and posed no threat

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to Berry or anyone else."

Compl. ¶ 39.

Ms. Alford has failed to produce sufficient evidence

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demonstrating a triable dispute of fact as to whether Deputy Berry

United States District Court
For the Northern District of California

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behaved unreasonably.

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Deputy Berry and Officer Landreneaux entered the Bald Hill Road

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property to conduct a welfare check.

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not have standing to complain of entry without cause onto the

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property, because the property did not belong to Mr. Stewart or

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Ms. Alford.5

The undisputed evidence indicates that

Furthermore, Ms. Alford does

While Ms. Alford alleges and Mr. Moore attests that

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Defendants' challenge to Plaintiff's standing to assert
these Fourth Amendment claims does not appear to dispute her
standing to bring her son's Fourth Amendment claims generally.
“[T]he general rule is that only the person whose Fourth Amendment
rights were violated can sue to vindicate those rights.” Moreland
v. Las Vegas Met. Police Dept., 159 F.3d 365, 369 (1998). “In
§ 1983 actions, however, the survivors of an individual killed as
a result of an officer’s excessive use of force may assert a
Fourth Amendment claim on that individual’s behalf if the relevant
state’s law authorizes a survival action.” Id. (citing 42 U.S.C.
§ 1988(a) and Smith v. City of Fontana, 818 F.2d 1411, 1416-17
(9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v.
de la Vina, 199 F.3d 1037 (9th Cir. 1999). California Code of
Civil Procedure § 377.20 provides that "a cause of action for or
against a person is not lost by reason of the person's death, but
survives subject to the applicable limitations period." See also
Cal. Civ. Proc. Code § 377.60 (authorizing causes of action to be
brought by decedent's personal representative or any of a defined
list of persons, including survivors by intestate succession.)
5

15

1
2

the officers sped up the driveway at undue speed, even if true,
this is not sufficient to sustain a claim for excessive force.
The Court next considers whether Deputy Berry used

3
4

unreasonable force by aiming his gun at Mr. Stewart.

5

officers arrived at the home, they attempted to persuade Mr.

6
7

Once the

Stewart to come with them, because his mother was concerned about
him.

Mr. Stewart responded by brandishing two butter knives, and

8
9

screaming, “Welcome to the Dragon!” and an explicative at the

United States District Court
For the Northern District of California

10

officers.

11

and dry-firing it at the officers.

12

re-enter the house to try to coax Mr. Stewart into surrender.

13

Stewart repeatedly returned inside the house, creating a genuine

14

risk that he might find Mr. Moore's unsecured rifle ammunition.

15

He retrieved a rifle from the house, and began aiming
Mr. Moore himself chose not to
Mr.

It was also within the realm of possibility that Mr. Stewart could

16
17
18

gain access to the numerous other weapons that Mr. Moore had
stored in his home.

While it is true that the trailer was located

19

in an exceedingly remote area, with no neighbors or passersby in

20

close proximity, the officers, Mr. Moore and Mr. Stewart himself

21

were in imminent danger.

22

behaved with restraint.

23
24

In the face of this danger, Deputy Berry
He pulled his weapon and aimed it at Mr.

Stewart for self-protection and to emphasize the seriousness of
his order to Mr. Stewart that he put down the weapons.

Deputy

25
26

Berry never fired his gun during the many hours that he was at the

27

scene.

Instead he backed up his vehicle to a safer distance from

28

the home and called for assistance.
16

1

There is no evidence apart from Mr. Moore's testimony that

2

Deputy Berry told Mr. Stewart, "I'm an inch from killing you

3

[expletive]."

4

Berry's harsh words, such language did not amount to an

5

unreasonable use of force, in a moment when Mr. Stewart was

6
7

Crediting Mr. Moore's testimony about Deputy

obviously unstable, had brandished knives, and may have had other
weapons at his disposal.

The language, if used, may have been

8
9

United States District Court
For the Northern District of California

10
11

counterproductive in this delicate situation, but it did not
violate the Fourth Amendment.
It is undisputed that Deputy Berry left the Bald Hill

12

property at about 9:00 pm on June 3, 2007, and did not return

13

during the remaining time period at issue in this lawsuit.

14

Alford has not presented any evidence that

15

Ms.

Deputy Berry was an

integral participant in launching chemical agents into the Moore-

16
17
18

Brown residence, or in blocking medical and fire fighting aid to
Mr. Stewart.

Because Deputy Berry's conduct was clearly within

19

the bounds of the Fourth Amendment, the Court grants summary

20

judgment in his favor on the Fourth Amendment claim against him.

21

B. Fourth Amendment Claims Against Other Defendants

22

Ms. Alford's Fourth Amendment § 1983 claim also includes a

23
24

challenge to the other Defendants' use of chemical agents against
Mr. Stewart, as well as the decision to block the Hoopa Tribal

25
26
27

Fire Department from extinguishing the blaze that killed Mr.
Stewart.

28
17

1. Use of Chemical Agents

1
2

The Court applies the three factors identified in the

3

reasonableness test established in Graham.

4

the crime at issue must be considered.

5

was committed.

6
7

First, the severity of

Here, initially no crime

Deputy Berry and Officer Landreneaux had been

called to conduct a welfare check, anticipating a possible
commitment under California Welfare and Institutions Code § 5150.

8
9

However, Mr. Stewart also forced the Moore-Brown family from their

United States District Court
For the Northern District of California

10

home, and the family was unable to return during the course of the

11

standoff.

12

contrary to Ms. Alford's assertions, violations of law occurred

13

and brought some urgency to apprehending Mr. Stewart.

14
15

Then he threatened the officers with weapons.

Thus,

Under the second factor in the Graham test, the Court must
consider whether Mr. Stewart was attempting to flee or evade

16
17
18

arrest.

Mr. Stewart was not attempting to flee.

However, he did

continue to resist arrest by refusing to leave the Moore-Brown

19

residence.

20

for the officers to use force.

21
22
23
24

Mr. Stewart's ongoing resistance increased the need

The constitutionality of law enforcement's actions in this
case depends most heavily on whether Mr. Stewart posed an
immediate threat to the officers or others, and whether the
officers' actions were a reasonable response to that threat.

25
26

Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) ("The most

27

important factor under Graham is whether the suspect posed an

28

immediate threat to the safety of the officers or others.").
18

Ms.

1
2
3

Alford makes several arguments asserting that the officers'
conduct was unreasonable considering the threat Mr. Stewart posed.
First, Ms. Alford argues that the duration of the standoff

4

and the length of time that passed without any gunfire diminished

5

the threat Mr. Stewart posed.

6
7

If Ms. Alford's testimony is

credited over the officers' testimony, as it must be on summary
judgment, no shots were ever fired.

However, even if Mr. Stewart

8
9

fired a gun, he did so at about 6:30 pm and again at about 9:00 pm

United States District Court
For the Northern District of California

10

on June 3, 2007.

11

the time when the SWAT teams began firing tear gas canisters into

12

the home at about 11:00 am.

13

last gunshot allegedly fired and when officers launched chemical

14

grenades into the trailer.

15

Fourteen hours passed between the last shot and

Eighteen hours passed between the

There is evidence that Mr. Stewart, at

some point, had turned on a television.

16
17
18

Courts may consider timing in assessing the reasonableness of
police response to a perceived threat.

See, e.g., Estate of Smith

19

v. Marasco, 318 F.3d 497, 516 (3rd Cir. 2003).

20

decedent was a mentally unstable individual who was engaged in an

21

ongoing feud with his neighbor and had lodged several complaints

22

against local law enforcement.

23
24

Id. at 502.

In that case, the

Two officers

responded to a complaint by the decedent's neighbor.

When the

decedent did not respond the officers' door knocks or phone calls,

25
26

and they came to believe based on a light shining through a window

27

that he was directing a laser-sighted firearm at the officers, the

28

situation evolved into a barricaded gunman scenario.
19

Id. at 502-

1

03.

The Third Circuit noted that six and a half hours passed

2

between the initial call to the police and the time the Special

3

Emergency Response Team began its "rock assault" on the decedent's

4

home, clearing the home with rocks, tear gas, and "flash bang"

5

devices.

6
7

Id. at 503, 517.

According to the Third Circuit, the

passage of more than six hours, with no recent use a weapon by the
decedent and the decedent's history of mental problems, rendered

8
9

the use of force unreasonable.

The court contrasted the case with

United States District Court
For the Northern District of California

10

Sharrar v. Felsing, 128 F.3d 810 (3rd Cir. 1997), where only three

11

hours transpired between the victim's call to police and the SWAT

12

team assault.

13
14
15

Id. at 516-17.

Nevertheless, here, even if the threat's imminence had
diminished, the threat of violence itself remained present and Mr.
Stewart continued to barricade himself in someone else's home.

16
17
18

The undisputed evidence is that Mr. Stewart aimed at least one
weapon at law enforcement, the rifle ammunition in the Moore-Brown

19

residence was accessible, and Mr. Stewart was a deeply disturbed

20

individual who was wracked with violent thoughts and appeared to

21

have lost touch with reality.

22

Stewart's opportunity to find the rifle ammunition which was not

23
24

The passage of time increased Mr.

in a safe, and to locate the other high-powered weapons and
ammunition, and figure out a way to unlock the safe they were in.

25
26

The fact that the television was turned on does not negate that

27

continuing danger.

Accordingly, the passage of time without any

28

gunfire does not establish that the officers unreasonably
20

1
2
3

initiated their use of chemical weapons to expel Mr. Stewart from
the home.
Ms. Alford also argues that law enforcement in this case

4

failed to consider less dangerous alternatives to a tear gas and

5

chemical grenade assault.

6
7

In Headwaters Forest Defense v. County

of Humboldt, the Ninth Circuit held that, where protestors did not
present an immediate threat to the safety of others, law

8
9

enforcement officers--and the district court in reviewing the

United States District Court
For the Northern District of California

10

reasonableness of their actions--were required to consider other

11

available tactics, such as negotiations, to accomplish arrests.

12

240 F.3d 1185, 1204-05 (9th Cir. 2000), vacated on other grounds,

13

534 U.S. 801 (2001); see also, Boyd, 374 F.3d at 779.

14
15

Ms. Alford points to evidence that she was not permitted to
communicate with her son, despite her numerous requests to do so

16
17
18

and her presence throughout the standoff.

However, the decision

not to allow Ms. Alford to speak directly with Mr. Stewart does

19

not establish that Defendants unreasonably failed to consider that

20

option.

21

father, and Ms. Alford was in communication with other officers.

22

Ms. Alford has not produced evidence that the officers' decision

23
24

Lt. Cavinta spoke with Ms. Alford and Mr. Stewart's

not to adopt her proposed strategy, in itself, rendered their
decision to use force unreasonable.

25
26

In addition, Ms. Alford argues that Defendants' failure to

27

negotiate with her son indicates that they neglected to consider

28

less dangerous alternatives.

There is evidence that various teams
21

1

of negotiators were brought to the scene, and officers made

2

attempts to communicate with Mr. Stewart by intercom.

3

Stewart's refusal to respond blocked these officers' attempts to

4

negotiate.

5
6

Mr.

However, Ms. Alford further argues that Defendants
unreasonably failed to deliver a "throw phone"6 or other means of

7
8
9

communication to the trailer.

Unlike the intercom used by the

officers, a throw phone could have offered a means for Mr. Stewart

United States District Court
For the Northern District of California

10

to communicate privately with the officers, and thus facilitated

11

negotiations.

12

made to deploy a throw phone into the residence, but he did not

13

explain the reason for not taking that step.

14

Lt. Cavinta testified only that no attempts were

Defendants argue

that, under the circumstances, it would have been too dangerous to

15
attempt to deliver a throw phone into the residence.

Yet it is

16
17

undisputed that Deputies Taylor and Barney approached within two

18

to three feet of the residence to launch chemical grenades into

19

the windows.

20

blanket.

21

take similar steps to deliver a throw phone or other communication

22

device into the Moore-Brown residence before ordering the use of

23

They did this under the cover of a bullet-resistant

A jury could find unreasonable Lt. Cavinta's failure to

force.

24
25
26
27
28

A "throw phone" is a phone encased in a box that also
contains an open microphone. Fisher v. City of San Jose, 558 F.3d
1069, 1073 n.3 (9th Cir. 2009) (en banc).
6

22

1

Instead, there is evidence that next a substantial number of

2

tear gas canisters were launched toward the residence

3

Ms. Alford has failed to present facts as to the specific danger

4

posed by the tear gas.

5

introducing the chemical agents with the intent to induce Mr.

6
7

However,

Sgt. Nova testified that they began

Stewart to surrender or begin negotiating with them.

Ms. Alford

does not point to evidence raising a dispute of material fact

8
9

allowing a reasonable jury to find that law enforcement officers

United States District Court
For the Northern District of California

10

acted unreasonably with respect to their use of the tear gas

11

canisters.

12

Ms. Alford concedes that the heart of her case is her

13

allegation that Deputy Barney intentionally deployed pyrotechnic

14

chemical agents into the home where Mr. Stewart had barricaded

15

himself, causing the fire that ultimately killed her son.

Ms.

16
17
18

Alford relies on Boyd, in which the Ninth Circuit determined that
"flash-bang" devices are "inherently dangerous," and held that the

19

use of such devices is excessive "absent a strong governmental

20

interest, careful consideration of alternatives and appropriate

21

measures to reduce the risk of injury."

22

not clear that the chemical grenades used in this case were

23
24

374 F.3d at 779.

It is

"flash-bang" devices as described in Boyd.
Deputy Barney admitted to deploying two "triple chamber

25
26

grenades."

Although he testified that the grenades were not

27

pyrotechnic, EPD Officer Altic testified, under questioning by Ms.

28

Alford's counsel, that "tri-chamber smoke grenades" are
23

1

pyrotechnic.

Officer Altic is a chemical grenadier, and he stated

2

that his testimony was based on his training.

3

argue that the "triple chamber grenades" Deputy Barney testified

4

to using were a non-pyrotechnic device different from a "tri-

5

chamber smoke grenade," which Officer Altic stated is pyrotechnic.

6
7

Defendants do not

Instead Defendants argue that there is no dispute of fact that the
"tri-chamber smoke grenades" used by the HCSD were not

8
9

pyrotechnic.

They contend that Officer Altic was confused when he

United States District Court
For the Northern District of California

10

made the statement that "tri-chamber smoke grenades" were

11

pyrotechnic.

12

that Officer Altic's confusion related to whether he and Ms.

13

Alford's counsel were referring the same device when they were

14

discussing "sting ball" grenades.

15

However, the testimony cited by Defendants indicates

Defendants also argue that Officer Altic had no personal

16
17
18

knowledge of the devices Deputy Barney actually used.

While this

is true, Defendants concede, as noted above, that the HCSD used a

19

"tri-chamber smoke grenade" during the incident.

20

lack of personal knowledge about what Deputy Barney deployed does

21

not negate his testimony that a "tri-chamber smoke grenade" is

22

pyrotechnic.

23
24

Officer Altic's

Furthermore, there is ample evidence that, within

minutes after Deputy Barney deployed the final grenades, a fire
began to consume the home.

There is no evidence that Mr. Stewart

25
26

started the fire.

Accordingly, Ms. Alford has raised a triable

27

dispute of fact as to whether Deputy Barney launched a pyrotechnic

28

device into the Moore-Brown residence, causing the fire that led
24

1

to Mr. Stewart's death.

If he did so by mistake, he would not be

2

liable, but a jury could infer that he knew or should have known

3

that the device was pyrotechnic.

4

that Lt. Cavinta ordered deployment of a triple chamber grenade,

5

as opposed to a non-pyrotechnic device.

6
7

However, there is no evidence

Nor is there evidence

that any other Defendant ordered or participated in the deployment
of a pyrotechnic device.

Accordingly, no other Defendant's

8
9

United States District Court
For the Northern District of California

10
11

conduct could be found unreasonable on this ground.
2. Failure to Rescue
Ms. Alford further alleges that Defendant members of the HCSD

12

and EPD violated Mr. Stewart's Fourth and Fourteenth Amendment

13

rights by prohibiting the Hoopa Fire Department from rescuing him

14

after the fire began.

15

The case law cited by Ms. Alford provides

that the Fourth Amendment and the Fourteenth Amendment due process

16
17
18

clause require that officers take reasonable steps to secure
necessary medical care for a detainee who has been injured while

19

being apprehended.

20

F.3d 1090, 1098-99 (9th Cir. 2006) (holding that an officer who

21

called for an ambulance, but did not provide CPR, satisfied the

22

Fourth Amendment's requirement for objectively reasonable post-

23
24

Tatum v. City and County of San Francisco, 441

arrest care); Maddox v. City of Los Angeles, 792 F.2d 1408, 1415
(9th Cir. 1986) (pre-Graham decision affirming jury instructions

25
26
27

stating that due process requires "police officers to seek the
necessary medical attention for a detainee when he or she has been

28
25

1
2
3

injured while being apprehended") (citing Revere v. Massachusetts
General Hosp., 463 U.S. 239, 244 (1983)).
However, none of these cases is applicable to the present

4

action, where Mr. Stewart continued to resist arrest, threatened

5

law enforcement with weapons, and barricaded himself in a home

6
7

with potentially accessible firearms.

In Tatum and Maddox the

injured individuals had been arrested, and the adequacy of care

8
9

provided by the officers subsequent to the arrest was challenged.

United States District Court
For the Northern District of California

10

Although the circumstances in which Mr. Stewart died are tragic,

11

these cases do not establish that Mr. Stewart was constitutionally

12

entitled to have firefighters battle flames and rescue him where

13

there was uncertainty and a risk that he might fire upon them.

14
15

Here, it is undisputed that the Hoopa Tribal Fire Department
was called to the scene during the standoff.

Lt. Cavinta

16
17
18

consulted with Fire Chief Duane Sherman when the fire started and
determined that was unsafe for fire personnel to approach, given

19

that Mr. Stewart was in possession of firearms.

20

failed to produce evidence sufficient for a jury to find that this

21

decision was unreasonable.

22

create a material dispute of fact because it is not qualified

23
24

Ms. Alford has

Ms. Sherman's declaration does not

expert testimony and there is no evidence that she was informed of
the dangers that Mr. Stewart posed to the firefighters.

25
26

Furthermore, Lt. Cavinta's testimony that it would be safe for

27

fire personnel to approach the residence and put out the fire only

28

after Mr. Stewart voluntarily left the home or it was destroyed is
26

1

not evidence of an unreasonable decision given Mr. Stewart's

2

earlier threats, brandishing of a rifle, and the presence of

3

ammunition and other chemical agents heating in the flames.

4

Accordingly, summary judgment is warranted with respect to Lt.

5

Cavinta's decision to restrain the Fire Department.

6
7

Defendants' motion for summary judgment as to Ms. Alford's
Fourth Amendment claims is granted in favor of HCSD Sheriff Philp,

8
9

Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen, EPD Sgt. Nova

United States District Court
For the Northern District of California

10

and Lt. Morey.

Summary judgment on Ms. Alford's Fourth Amendment

11

claims against HCSD Lt. Cavinta and HCSD Deputy Barney is denied.

12

III. Section 1983 Claim based on the Fourteenth Amendment

13

Ms. Alford also asserts a cause of action for violation of her

14

Fourteenth Amendment substantive due process right to be free from

15

unwarranted interference with her familial relationship with her

16
17
18

son.

Compl. at ¶46.

“This circuit has recognized that parents

have a Fourteenth Amendment liberty interest in the companionship

19

and society of their children.”

20

Under the Fourteenth Amendment, "only official conduct that

21

'shocks the conscience' is cognizable as a due process violation."

22

Porter v. Osborn, 546 F.3d 1131, 1137 (citing Lewis, 523 U.S. at

23
24

Wilkinson, 610 F.3d at 554.

846).
Ms. Alford argues that Defendants used excessive force against

25
26

her son and were deliberately indifferent to his medical needs.

27

Because the Court earlier found that Deputy Berry's conduct was

28

within the bounds of the Fourth Amendment, his conduct also fails
27

1

to sustain a claim under the "shocks the conscience" standard

2

applicable to Fourteenth Amendment claims.

3

respect to Ms. Alford's challenge of the decision to prevent the

4

Hoopa Tribal firefighters from extinguishing the flames.

5

the evidence is insufficient to support an inference that this

6
7

The same is true with

Because

decision was unreasonable, it also fails to raise a dispute of
fact that it shocks the conscience.

8
9

Ms. Alford's sole Fourth Amendment claims that warrant a trial

United States District Court
For the Northern District of California

10

are those related to Lt. Cavinta's failure to order the delivery

11

of a throw phone into the Moore-Brown residence before authorizing

12

the use of force, and Deputy Barney's launch of two triple chamber

13

smoke grenades into the home.

14

motion for summary judgment on her Fourteenth Amendment claims,

15

However, to survive Defendants'

Ms. Alford must point to evidence sufficient to support a finding

16
17
18

that these actions were taken due to "deliberate indifference" or
"with a purpose to harm unrelated to legitimate law enforcement

19

objectives."

20

Lewis the shocks-the-conscience standard may be met by showing

21

that an officer has acted either with deliberate indifference or

22

with a purpose to harm).

23
24

Porter, 546 F.3d at 1137 (explaining that under

Ms. Alford has produced no evidence upon

which a jury could find that Lt. Cavinta or Deputy Barney intended
to harm Mr. Stewart.

Porter, 546 F.3d at 1138 n.6 (discerning no

25
26
27
28

distinction between "purpose to harm" and "intent to harm").
On the other hand, the less onerous deliberate indifference
standard requires only that Ms. Alford produce evidence that Lt.
28

1

Cavinta and Deputy Barney "knowingly and unreasonably" disregarded

2

a risk of serious injury.

3

492, 515 (6th Cir. 2002) (post-Lewis decision applying the

4

deliberate indifference standard to review police conduct during a

5

two-day standoff).

6
7

Ewolski v. City of Brunswick, 287 F.3d

The deliberate indifference standard applies

where an officer has time and a practical opportunity to make
deliberate decisions.

Lewis, 523 U.S. at 851.

With respect to

8
9

Lt. Cavinta's decision not to deliver a throw phone before

United States District Court
For the Northern District of California

10

resorting to chemical weapons, Defendants argue that it was simply

11

too dangerous to deploy the phone.

12

no phone was available or that Lt. Cavinta was unaware of such

13

phone.

14

otherwise peacefully engage with law enforcement.

15

Defendants do not argue that

However, Mr. Stewart showed no inclination to negotiate or
Various

negotiators and mental health personnel had been brought to the

16
17
18

scene.

Numerous attempts were made to communicate and negotiate

with Mr. Stewart.

That Lt. Cavinta did not deploy a throw phone

19

in this circumstance does not indicate a purposeful, knowing

20

indifference that shocks the conscience.

21
22
23
24

Turning to Deputy Barney's conduct, Ms. Alford has raised a
material dispute of fact as to whether his actions shocked the
conscience.

As explained earlier, there is evidence that Deputy

Barney deployed what may have been a pyrotechnic device into the

25
26
27

home contrary to existing orders and policy.

A reasonable jury

could find that the knowing or reckless use of such a device

28
29

1
2

demonstrates an unreasonable disregard for Mr. Stewart's wellbeing that shocks the conscience.
Accordingly, Ms. Alford has a triable claim for violation of

3
4

her Fourteenth Amendment rights solely based on evidence that

5

Deputy Barney deployed a pyrotechnic device into the home.

6
7

Defendants' motion for summary judgment as to Ms. Alford's
Fourteenth Amendment claims is granted in favor of HCSD Sheriff

8
9

Philp, HCSD Lt. Cavinta, HCSD Sgt. Quenell, HCSD Deputy Berry, EPD

United States District Court
For the Northern District of California

10

Chief Nielsen, EPD Sgt. Nova and Lt. Morey.

11

denied regard to Ms. Alford's Fourteenth Amendment claim against

12

HCSD Deputy Barney.

13

IV.

14
15

Defendants' motion is

Qualified Immunity
Defendants seek protection under the doctrine of qualified

immunity.

Qualified immunity shields law enforcement officers not

16
17
18

only from liability, but from the burdens of litigation.

Under

the test established in Saucier v. Katz, qualified immunity does

19

not apply when, viewing the facts in the light most favorable to

20

the allegedly injured party, the officer's conduct violated a

21

constitutional right, and the constitutional right was clearly

22

established at the time the misconduct occurred.

23
24

201 (2001).

533 U.S. 194,

"Since a reasonably competent public official should

know the law governing his conduct," qualified immunity does not

25
26

apply when the relevant law is clearly established.

Harlow v.

27

Fitzgerald, 457 U.S. 800, 818-19 (1982).

28

binding precedent, a court should look to whatever decisional law
30

"In the absence of

1

is available to ascertain whether the law is clearly established

2

for qualified immunity purposes, including decisions of state

3

courts, other circuits, and district courts."

4

at 1060 (internal citations, quotation marks and alteration

5

omitted).

6
7

Drummond, 343 F.3d

State actors must have fair notice of what the law

requires.
There is sufficient evidence for a reasonable jury to find

8
9

that Deputy Barney violated the constitution by deploying a

United States District Court
For the Northern District of California

10

pyrotechnic device into the home where Mr. Stewart had barricaded

11

himself.

12

Boyd, 374 F.3d at 779, and Estate of Smith, 318 F.3d at 516-17,

13

gave Deputy Barney sufficient notice of the need for caution when

14

using explosive devices and other aggressive tactics to subdue a

15

At the time of the incident, in 2007, decisions such as

mentally unstable individual who is resisting arrest.

It was well

16
17
18

established at the time of the standoff that, where no immediate
threat to the safety of others exists, law enforcement officers

19

are required to consider less intrusive tactics before using less-

20

than-lethal devices to accomplish an arrest.

21

779 (requiring a warning and consideration of alternatives before

22

use of a less-than-lethal flash bang device); see also Headwaters

23
24

Boyd, 374 F.3d at

Forest Defense, 240 F.3d at 1204.
On the other hand, no pre-existing authority established that

25
26
27

it was unreasonable for law enforcement officers to fail to deploy
a throw phone as part of their efforts to negotiate a peaceful end

28
31

1
2

to a standoff.

Accordingly, Lt. Cavinta is entitled to qualified

immunity based on this sole surviving claim against him.
CONCLUSION

3
4
5
6
7

The Court grants Defendants' motion for summary judgment on
Ms. Alford's Fourth Amendment claims in favor of HCSD Sheriff
Philp, HCSD Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen,
EPD Sgt. Nova and Lt. Morey.

The Court denies summary judgment on

8
9

Ms. Alford's Fourth Amendment claims against Deputy Barney.

The

United States District Court
For the Northern District of California

10

Court finds that Ms. Alford has produced sufficient evidence to

11

raise a Fourth Amendment claim against Lt. Cavinta, but grants

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summary judgment in his favor because he is entitled to qualified

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immunity.

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The Court grants summary judgment on Ms. Alford's Fourteenth
Amendment claims in favor of HCSD Sheriff Philp, HCSD Lt. Cavinta,

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HCSD Sgt. Quenell, HCSD Deputy Berry, EPD Chief Nielsen, EPD Sgt.
Nova and Lt. Morey.

However, the Court denies summary judgment on

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Ms. Alford's Fourteenth Amendment claim against HCSD Deputy

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Barney.

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The Court dismisses all of the claims against Humboldt
County, the City of Eureka, and HCSD Detective Schlesiger.
IT IS SO ORDERED.

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Dated: 4/11/2011

CLAUDIA WILKEN
United States District Judge

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