Killian v. City of Monterey et al

Filing 46

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO WITHDRAW by Judge Paul S. Grewal granting 43 and 45 (psglc2, COURT STAFF) (Filed on 4/16/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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J. ROBERT KILLIAN,

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Plaintiff,
v.

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CITY OF MONTEREY, et al.,
Defendants.

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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT AND
MOTION TO WITHDRAW
(Re: Docket Nos. 43 and 45)

Before the court is Defendants Kris Richardson and John Olney’s motion for summary
judgment as to Plaintiff J. Robert Killian’s remaining equal protection claim 1 and Ben
Nisenbaum’s motion to withdraw as counsel of record for Killian. 2 Killian has not filed any timely

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opposition to either motion. 3 With the benefit of the parties’ prior summary judgment argument, 4
the court finds this additional motion for summary judgment suitable for disposition on the papers. 5

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See Docket No. 45.

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See Docket No. 43.

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See Civil L.R. 7-3 (“The opposition must be filed and served not more than 14 days after the
motion was filed.”).

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See Docket No. 31.

See Civil L.R. 7-1(b) (“In the Judge’s discretion, or upon request by counsel and with the Judge’s
approval, a motion may be determined without oral argument or by telephone conference call.”).
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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW

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In the interests of expediency, the court will turn directly to the motion before it. 6
In its prior summary judgment order, the court noted that although Defendants sought

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summary judgment as to all of Killian’s claims, Defendants did not “substantively address” why

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summary judgment was warranted on Killian’s equal protection claim related to Officers

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Richardson and Olney. 7 Because the current motion remedies that defect, summary judgment on

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the sole remaining equal protection claim is warranted.

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I. LEGAL STANDARDS
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A.

Pursuant to Fed. R. Civ. P. 56(a), the “court shall grant summary judgment if the movant

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United States District Court
For the Northern District of California

Summary Judgment

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shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” 8 Material facts are those that may affect the outcome of the case. 9 A

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dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return

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a verdict for the nonmoving party. 10 When the parties file cross-motions for summary judgment,

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the district court must consider all of the evidence submitted in support of both motions to evaluate
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whether a genuine issue of material fact exists precluding summary judgment for either party. 11
B.

Qualified Immunity
Qualified immunity shields government officials from civil liability under Section 1983

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Unfamiliar readers are directed to the court’s Order Granting-in-Part Defendants’ Motion for and
Denying Killian’s Cross-Motion for Summary. See Docket No. 32 at 1-10.

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See Docket No. 32 at 21.

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Fed. R. Civ. P. 56(a).

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”).

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See id.

See Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136
(9th Cir. 2001) (the “court must review the evidence submitted in support” of each cross-motion).
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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW

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where “their conduct does not violate clearly established statutory or constitutional rights of which

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a reasonable person would have known.” 12 “Qualified immunity balances two important

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interests—the need to hold public officials accountable when they exercise power irresponsibly and

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the need to shield officials from harassment, distraction, and liability when they perform their

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duties reasonably.” 13

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A police officer is entitled to qualified immunity from a civil rights action unless, under the

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particularized circumstances he faced at the time of his actions, it would have been clear to a
reasonable officer that his conduct was unlawful in the situation he confronted. 14 The issue of

United States District Court
For the Northern District of California

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qualified immunity requires a determination of: (1) whether the facts show the officer’s conduct

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violated a constitutional right and (2) whether the right was clearly established. 15 The court may

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evaluate the two prongs in any order. 16 It is the responsibility of the jury, not the judge, to

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determine any disputed foundational or historical facts that underlie the determination of whether
an officer is entitled to qualified immunity. 17

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (government officials “performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person” would
have known).
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Pearson v. Callahan, 555 U.S. 223, 231 (2009).

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See Saucier v. Katz, 533 U.S. 194, 202 (2001) (“The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.”).
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See Pearson, 555 U.S. at 232 (“Qualified immunity is applicable unless the official’s conduct
violated a clearly established constitutional right.”).

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See id. at 236 (“The judges of the district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.”).
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See Acosta v. City & Cnty. of San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996) (“Regardless of
who makes the ultimate determination as to qualified immunity, the jury, not the judge, must
decide the disputed ‘foundational’ or ‘historical’ facts that underlie the determination.”); see also
Sinaloa Lake Owners Ass’n v. City of Simi Valley, 70 F.3d 1095, 1099 (9th Cir. 1995) (“The
threshold determination of whether the law is clearly established is a question of law for the court.
The second part of the test, whether a reasonable state official could have believed the action taken
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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW

In this case, Killian “bears the burden of proving that the rights” he “claims were ‘clearly

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established’ at the time of the alleged violation.” 18 The burden is on the government, however, to

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show that “a reasonable police officer could have believed, in light of the settled law, that he was

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not violating a constitutional or statutory right.” 19

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C.

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United States District Court
For the Northern District of California

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Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a
direction that all persons similarly situated should be treated alike.” 20 “To prevail on an equal
protection claim under the ‘Fourteenth Amendment, a plaintiff must demonstrate that enforcement

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[of the laws] had a discriminatory effect and the police were motivated by a discriminatory

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purpose.’” 21 “Enforcement may be shown through a variety of actual or threatened arrests,

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searches and temporary seizures, citations, and other coercive conduct by the police.” 22 In order to

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prove a discriminatory effect, “the claimant must show that similarly situated individuals” were not
prosecuted. 23

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was lawful, is a mixed question of law and fact. It involves an objective test of whether a
reasonable official could have believed that his conduct was lawful in light of what he knew and
the action he took. If there are genuine issues of material fact in issue relating to the historical facts
of what the official knew or what he did, it is clear that these are questions of fact for the jury to
determine.”) (citations omitted).
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Moran v. Washington, 147 F.3d 839, 844 (9th Cir. 1998) (citing Davis v. Scherer, 468 U.S. 183,
197 (1984)).

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Gasho v. United States, 39 F.3d 1420, 1438 (9th Cir. 1994).

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe,
457 U.S. 202, 216 (1982)).
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Lacey v. Maricopa Cnty., 693 F.3d 896, 920 (9th Cir. 2012) (quoting Rosenbaum v. City & Cnty.
of S.F., 484 F.3d 1142, 1152 (9th Cir. 2007)); see also Wayte v. United States, 470 U.S. 598, 608,
(1985).
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Id. (citing Rosenbaum, 484 F.3d at 1152) (additional citation omitted).

United States v. Armstrong, 517 U.S. 456, 465 (1996); see also Lacey, 693 F.3d at 921.
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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW

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D.

Motion to Withdraw
Civil L.R. 11-5 provides: “Counsel may not withdraw from an action until relieved by order

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of Court after written notice has been given reasonably in advance to the client and to all other

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parties who have appeared in the case.” “The decision to grant or deny counsel’s motion to

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withdraw is committed to the discretion of the trial court.” 24

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II. DISCUSSION

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In its prior order the court held that “a reasonable jury could only find” that Officers

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United States District Court
For the Northern District of California

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Killian Has Not Identified Any Similarly-Situated Individual Who Was
Treated Differently

Richardson and Olney had “probable cause” to arrest Killian. 25 The court also found that there was

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“no dispute that Olney had seen Killian driving an hour before at a different location at a time

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when his behavior was markedly” different and that later the car was found “at a different location”
with Killian in the driver’s seat. 26 The court also found that there was “no dispute” that “the car

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obstructed both pedestrian and vehicular” traffic and Killian had “consumed opiate and

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benzodiapine medication” and “performed poorly on sobriety tests.” 27 Moreover, “the hour was

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late” and “Killian’s car was illegally parked across an entire crosswalk at a four-way intersection

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with several stop lights.” 28 In light of the uncontroverted factual record summary judgment also is

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warranted on Killian’s remaining equal protection claim. Because Killian has not identified

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similarly-situated individuals who were treated differently, a reasonable jury could only find that

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Irwin v. Mascott, Case No. 3:97-cv-04737-JL, 2004 U.S. Dist. LEXIS 28264, at *3-4
(N.D. Cal. Dec. 1, 2004) (citing Washington v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087
(7th Cir. 1982) (explaining the “grant or denial of an attorney’s motion to withdraw in a civil case
is a matter addressed to the discretion of the trial court”)).
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Docket No. 32 at 17.

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Id.

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Id.

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Id.

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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW

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the defendant officers did not violate Killian’s constitutional right to the equal protection of the

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laws. Because Killian cites no case law that the defendant officers violated any clearly established

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constitutional right by acting on the probable cause that was present when they arrested Killian, the

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officers are entitled to qualified immunity on Killian’s equal protection claim. Summary judgment

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on Killian’s equal protection claim therefore is GRANTED.

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B.

Nisenbaum’s Motion to Withdraw as Killian’s Counsel of Record

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Killian’s counsel Benjamin Nisenbaum moves to withdraw from his representation in this

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case because Nisenbaum and Killian have reached an impasse about whether or not and under what

United States District Court
For the Northern District of California

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circumstances the case should proceed. 29 That motion is unopposed and has been filed on the

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docket. 30 The court discussed the issue at a hearing which was attended by Nisenbaum, Killian and

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Defendants’ counsel of record, Omar Rodriguez. 31 Because the court believes that both Killian and

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Nisenbaum would be best-served by permitting Nisenbaum to withdraw, the court GRANTS
Nisenbaum’s motion. Killian is reminded that now that Nisenbaum is no longer counsel of record

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See Docket No. 43-1 at ¶¶ 3-4
3. The instant lawsuit was filed in this Court on October 19, 2012. The parties
conducted complete and full discovery. Both Plaintiff, ROBERT KILLIAN and
Defendants timely filed Cross-Motions for Summary Judgment. The Court ruled on the
parties’ Cross-Motions for Summary Judgment on December 13, 2013, granting summary
adjudication on all claims in favor of defendants except an equal protection claim against
which defendants did not move. The parties subsequently engaged in settlement
negotiations. A settlement, approved by Mr. KILLIAN, was reached on January 13, 2014.
Since then, Mr. KILLIAN has refused to sign the written agreement reflecting the terms of
the settlement.
4. Mr. KILLIAN and I have reached irreconcilable differences over how to proceed in
this matter. I therefore ask the Court to allow this law office to withdraw as counsel of
record. I have advised Mr. KILLIAN in writing of the pendency of the instant Motion to
Withdraw as his counsel of record, as well as the pending Order to Show Cause (including
a copy of the Order to Show Cause), and all its particulars, including the Court’s Order that
he appear on March 25, 2014 at 9:00 a.m. in Courtroom 5 on the Fourth Floor, and the
address of the Courthouse, when he can address both the Order to Show Cause and the
instant Motion to Withdraw as his counsel of record.
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See Docket No. 43.
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See Docket No. 44.

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Case No. 5:12-cv-05418-PSG
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND MOTION TO
WITHDRAW