Kassab v. San Diego Police Department et al
Filing
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ORDER Denying 182 Plaintiff' s Motion For Reconsideration. Signed by Judge Gonzalo P. Curiel on 4/17/2013. (srm)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STEVE KASSAB,
CASE NO. 07cv1071 GPC
(WMC)
Plaintiff,
vs.
ORDER DISMISSING
PLAINTIFF’S MOTION FOR
RECONSIDERATION
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SAN DIEGO POLICE
DEPARTMENT, a municipal
corporation, et al.,,
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[DKT. NO. 182]
Defendant.
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Pending before the Court is Plaintiff’s motion to reconsider the Court Order
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issued on January 11, 2013 granting Defendant’s motion to dismiss parties and limit
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the issues to be tried. ECF No. 182. For the reasons set out below, the Court DENIES
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Plaintiff’s motion.
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BACKGROUND
Plaintiff’s amended complaint asserts several §1983 claims against
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Defendants, including false arrest and false imprisonment, assault and intimidation,
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and excessive force and battery. ECF No. 49. Plaintiff also alleged state law civil
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rights violations and intentional infliction of emotional distress. Id. On September
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9, 2009, the Court granted Defendants’ motion for summary judgment as to all of
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Plaintiff’s federal claims and declined to exercise supplemental jurisdiction over
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07cv1071 CAB (WMc)
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Plaintiff’s state law claims. Dkt. No. 123. Mr. Kassab appealed the Court’s ruling
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to the Ninth Circuit. Upon review, the Ninth Circuit affirmed in part, reversed in
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part, and remanded. Kassab v. San Diego Police Department, 453 F. App’x 747, 748
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(9th Cir. 2011). The Ninth Circuit held that the district court properly granted
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summary judgment on Mr. Kassab’s §1983 claims “concerning the searches of his
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store, his arrest, and his prosecution because these claims are Heck-barred.” Id. at
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*748. See also Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The Ninth Circuit
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also upheld summary judgment on the excessive force claim “alleging that
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defendant Nunez slammed a car door on his knee because Kassab failed to create a
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genuine dispute of material fact as to whether Nunez acted intentionally.” Id. The
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Ninth Circuit further upheld the excessive force claim against the “City of San
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Diego defendants because there was no underlying constitutional violation as to the
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car door incident, and Kassab failed to create a triable dispute as to whether the
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exposure to excessive heat was the product of a city custom or practice or a failure
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to train.” Id. The Ninth Circuit reversed summary judgment on only one issue -
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Kassab’s excessive force claim that “he was detained in a police car for more than
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four hours, with the windows rolled up, no air conditioning, and an interior
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temperature of 115 degrees.” Id. The Court of Appeals held that a genuine issue of
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material fact existed as to whether the police used excessive force in leaving Kassab
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in the hot police car. Id. Accordingly, the Ninth Circuit reversed summary
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judgment on the claim “as to the individual officers” and remanded for further
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proceedings. Id.
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On January 11, 2013, the Court granted Defendant’s motion to dismiss parties
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and limit the issues to be tried. ECF No. 181. In that order, the Court dismissed all
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but two Defendants, San Diego Police Officers Skinner and Hernandez, pursuant to
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the Ninth Circuit ruling which affirmed in part, reversed in part, and remanded the
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case back to the district court. Kassab, 453 F. App’x 747. The Court further held
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that the only issue to be presented at trial would be the one excessive force count
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that was reversed and remanded pursuant to the aforementioned Ninth Circuit
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ruling. Id.
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Plaintiff asks this Court to set aside its ruling based on two arguments. First,
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Plaintiff asserts that the Court improperly dismissed Officer Millet because she was
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the arresting officer and therefore should remain a Defendant. ECF No. 182 at 2.
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Second, Plaintiff contends that the City of San Diego should also remain a
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Defendant. Id. In opposition, Defendants point out that Plaintiff fails to
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acknowledge the Ninth Circuit opinion affirming the District Court’s granting of
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summary judgment as to all issues except one excessive force claim. ECF No. 183 at
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2. Defendants further contend that the admissible evidence in the matter shows that
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only Officers Skinner and Hernandez were involved in the arrest of the Plaintiff,
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and that any allegations that Officer Millet was involved in the arrest are mere
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conjecture or inadmissible evidence. Id. at 3. Defendants also assert that the City of
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San Diego should not be a named Defendant in the matter because the claims
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against the City are Heck-barred and the District Court’s findings dismissing those
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claims were affirmed by the Ninth Circuit.
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DISCUSSION
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A district court may reconsider an order under either Federal Rule of Civil
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Procedure 59 (e) (motion to alter or amend a judgment) or Rule 60(b)(relief from
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judgment). Under the local rules, a party that files a motion for reconsideration of
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an order must set forth the material facts and circumstances surrounding the motion,
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including any new or different facts and circumstances that are claimed to exist
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which did not exist, or were not shown, upon such prior application. L. Civ. R. 7.1.i.
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Motions for reconsideration offer an “extraordinary remedy, to be used sparingly in
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the interests of finality and conservation of judicial resources.” Carroll v. Nakatani,
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342 F.3d 934, 945 (9th Cir.2003). Reconsideration is appropriate if the district
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court (1) is presented with newly discovered evidence, (2) committed clear error or
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the initial decision was manifestly unjust, or (3) if there is an intervening change in
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controlling law. Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d
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1255, 1263 (9th Cir. 1993).
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Plaintiff first argues that the Court wrongfully dismissed Officer Millet
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because she assisted with his arrest. Plaintiff attaches to his declaration a statement
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by Officer Hernandez that indicates he assisted Officer Millet in the execution of the
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arrest warrant for Steven Kassab. ECF No. 182, Exhibit 2. The statement further
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details a planning meeting between Officer Millet and Officers Hernandez and
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Skinner prior to the operation taking place which lead to Plaintiff’s arrest.
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Defendants object to the submission of the statement as inadmissible evidence that
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has never been brought forth before the Court. Defendants further contend that the
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statement does not show that Officer Millet participated in the arrest of Mr. Kassab.
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Defendants remind the Court that the Ninth Circuit’s ruling affirmed the Courts
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summary judgment on all counts with the exception of one excessive force claim by
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Officers Hernandez and Skinner and, as such, Officer Millet was properly
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dismissed.
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The Court will not rely on evidence that could have been made available to
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the Court prior to the order granting summary judgment, which the Ninth Circuit
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affirmed on all but one count. Although Plaintiff brings this motion for
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reconsideration of the order dismissing defendants and limiting the issues at trial, it
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appears that Plaintiff is also attempting to re-litigate the previous order granting
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summary judgment. For example, Plaintiff states that he has the right to show that
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Officer Millet is personally liable under 42 U.S. C section 1983. ECF No. 182 at 6.
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However, the allegations of a violation of 42 U.S.C. section 1983 were dismissed by
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the Court and the Ninth Circuit affirmed that ruling. If the proffered evidence was
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available before disposition of the motion for summary judgment, then as a matter
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of law the movant is not entitled to reconsideration based upon that evidence. All
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Hawaii Tours, Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 649 (D. Haw.
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1987) rev'd, 855 F.2d 860 (9th Cir. 1988)(citing Trentacosta v. Frontier Pac.
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Aircraft Industries, 813 F.2d 1553, 1557–58 n. 4 (9th Cir.1987); Frederick S. Wyle
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P.C. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir.1985)). Here, Plaintiff failed to
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demonstrate that the evidence could not have been obtained before the Court ruled
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on defendant’s motion for summary judgment. The Court now refuses to consider
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the evidence after the Ninth Circuit has ruled upon the appeal of the order granting
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summary judgment. The Court further refuses to review new evidence upon
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reconsideration of a completely separate order seeking to implement the Ninth
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Circuit’s decision.
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Plaintiff’s argument that the Court improperly dismissed the City of San
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Diego also fails for similar reasons. Plaintiff again asserts 42 U.S.C. section 1983
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claims against the City of San Diego, an issue that was dismissed by the Court and
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affirmed by the Ninth Circuit. ECF NO. 182 at 7. The Ninth Circuit found that Mr.
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Kassab “failed to create a triable dispute as to whether the exposure to excessive
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heat was the product of a city custom or practice or a failure to train.” Kassab, 453
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F. App’x 747. As the Ninth Circuit affirmed dismissal of this claim, and as Plaintiff
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has not stated any other reason to support his argument, the Court refuses to
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reconsider its decision dismissing the City of San Diego as a defendant.
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Plaintiff has not brought forth any other assertions that the Court has
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committed clear error, that the decision was manifestly unjust or that there was an
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intervening change in controlling law. For these reasons, the Court stands by its
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January 11, 2013 order dismissing all defendants except San Diego Police Officers
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Hernandez and Skinner, and limiting the issue to be tried to the one excessive force
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claim. ECF No. 181.
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CONCLUSION
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IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration is
DENIED.
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DATED: April 17, 2013
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HON. GONZALO P. CURIEL
United States District Judge
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