Kendrick v. County of San Diego et al

Filing 106

ORDER Denying 102 Plaintiff's Motion for Chuman Certification. The Court continues the stay of the case in its entirety pending a ruling on Defendants' interlocutory appeal. The hearing set on July 13, 2018 shall be vacated. Signed by Judge Gonzalo P. Curiel on 7/10/18. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CYNTHIA KENDRICK, individually,
and as successor in interest to her now
deceased husband, GARY KENDRICK,

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Case No.: 15cv2615-GPC(AGS)
ORDER DENYING PLAINTIFF’S
MOTION FOR CHUMAN
CERTIFICATION

Plaintiff,
v.
COUNTY OF SAN DIEGO; SAN
DIEGO COUNTY SHERIFF’S
DEPARTMENT; San Diego Sheriff
WILLIAM GORE; San Diego Sheriff’s
Deputy STEVEN BLOCK; and DOES 1
through 50,
Defendants.

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Before the Court is Plaintiff’s motion for Chuman1 certification. (Dkt. No. 102.)

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Defendants filed an opposition. (Dkt. No. 104.) Plaintiff filed a reply. (Dkt. No. 105.)
After a review of the briefs, and the applicable law, the Court DENIES Plaintiff’s motion
for Chuman certification.
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Chuman v. Wright, 960 F.2d 104 (9th Cir. 1991).
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Background

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This 42 U.S.C. § 1983 action alleges numerous causes of action arising out of the

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shooting death of Gary Kendrick by Deputy Steven Block and the subsequent alleged

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seizure of Gary’s wife, Cynthia Kendrick by Lieutenant Brown-Lisk, Detective Barnes,

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Detective Hillen, Sergeant Lopez, Deputy Norie, Deputy Collis and Deputy Worthington.

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(Dkt. No. 61.)

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On March 14, 2018, the Court granted in part and denied in part Defendants’

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motion for summary judgment. (Dkt. No. 85.) Relevant to the instant Chuman motion,

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the Court denied Defendants’ motion based on qualified immunity. (Id. at 24-31.2)

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On the first prong of the qualified immunity analysis, the Court concluded that

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based on the facts alleged by Plaintiff, “Deputy Block acted unreasonably and violated

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Gary’s constitutional right to be free from excessive force”, (id. at 26), and that the seven

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individual Defendants acted unreasonably and violated Cynthia’s constitutional right to

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be free from an unreasonable seizure. (Id.)

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On the second prong as to whether the constitutional right was clearly established

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at the time of the challenged conduct, the Court held that as to Deputy Block, “it was

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clearly established that shooting Gary with his arms outstretched and parallel to the

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ground with a shotgun in one hand and a liquor bottle in the other hand, without any

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further movements or gestures, was a violation of Gary’s Fourth Amendment rights to be

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free from excessive force” under George v. Morris, 736 F.3d 829 (9th Cir. 2013). (Id. at

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30.) As to the claim for unreasonable seizure of Cynthia by the seven individual

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Defendants, the Court concluded that under Maxwell v. Cnty. of San Diego, 708 F.3d

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1075 (9th Cir. 2013), it was clearly established that detaining, separating and

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interrogating Cynthia for hours was a violation of her Fourth Amendment right against

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unreasonable seizure. (Id. at 30-31.)

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Page numbers are based on the CM/ECF pagination.
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On April 11, 2018, Defendants filed a notice of appeal of the Court’s order on

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summary judgment. (Dkt. No. 97.) On May 9, 2018, the Court granted the parties’ joint

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motion to vacate all remaining pre-trial dates pending the outcome of Defendants’

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interlocutory appeal. (Dkt. Nos. 100, 101.) The Court also stayed the case for

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administrative purposes. (Dkt. No. 101.) On May 11, 2018, Plaintiff filed a motion for

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Chuman certification seeking a ruling that the interlocutory appeal is frivolous, that the

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Court retain jurisdiction over the entire action and proceed with trial. (Dkt. No. 102.)

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Defendants oppose.

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Discussion

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The United States Supreme Court has recognized a narrow exception that allows

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an interlocutory appeal of a denial of summary judgment based on qualified immunity.

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Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). An appeal of an order denying qualified

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immunity “normally divests the district court of jurisdiction to proceed with trial[;]”

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however, under the Ninth Circuit;s decision in Chuman v. Wright, 960 F.2d 104, 105 (9th

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Cir. 1992), a district court “may certify the appeal as frivolous and may then proceed

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with trial[.]” Padgett v. Wright, 587 F.3d 983, 985 (9th Cir. 2009) (citing Mitchell, 472

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U.S. at 530). Under Chuman, “[s]hould the district court find that the defendants’ claim

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of qualified immunity is frivolous,” it “may certify, in writing, that defendants have

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forfeited their right to pretrial appeal, and may proceed with trial.” Chuman, 960 F.2d at

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105. If a district court certifies an appeal as frivolous, the defendant may then apply to

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the Ninth Circuit for a discretionary stay. Id. at 105 n.1.

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“An appeal is frivolous if it is wholly without merit.” United States v. Kitsap

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Physicians Serv., 314 F.3d 995, 1003 n. 3 (9th Cir. 2002) (quoting Amwest Mortgage

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Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir. 1991)). A qualified immunity claim is

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frivolous if it “is unfounded, so baseless that it does not invoke appellate jurisdiction.”

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Marks v. Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996) (citation omitted). An appeal

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of qualified immunity defense may not be made based on whether there are genuine

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issues of material fact at issue. Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 791
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(9th Cir. 2018) (an appellate court has jurisdiction “over issues that do not require

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resolution of factual disputes, including in cases where officers argue that they have

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qualified immunity, assuming the facts most favorable to the plaintiff.”); Adams v.

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Speers, 473 F.3d 989, 990-91 (9th Cir. 2007) (the defendant “can make an interlocutory

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appeal from the ruling on immunity only if he accepts as undisputed the facts presented

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by the appellees”)).

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Plaintiff argues that as to Deputy Block, Defendants’ appeal is frivolous as the

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Court properly denied qualified immunity based on clearly established law under George

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v. Morris, 736 F.3d 829 (9th Cir. 2013). As to the unreasonable seizure claim by

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Cynthia, Plaintiff argues that the case of Maxwell v. Cnty. of San Diego, 708 F.3d 1075

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(9th Cir. 2013) put the individual defendants on notice that their actions would violate the

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Fourth Amendment.

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Defendants do not substantively challenge the denial of qualified immunity as to

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Deputy Block. Instead, they primarily argue that the Court’s order on qualified immunity

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as to the seven individual Defendant deputies and detectives who conducted an

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investigation after the incident are entitled to a separate determination that the law

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governing their actions was clearly established. They assert that the Court failed to

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consider the action of each person individually based on the facts known to each of them

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so it was “obvious to all reasonable governmental actors, in the defendant’s place, that

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what he is doing violates the federal law.” (Dkt. No. 104 at 2.) They argue that the seven

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deputies accused of an unlawful detention all acted based on different information and at

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different times. (Id. at 3.) In reply, Plaintiff argues that Defendants’ argument is a red

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herring as their argument relates to the sufficiency of the evidence and not a legal issue

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falling within the appellate court’s limited jurisdiction to hear an interlocutory appeal

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challenging a denial of qualified immunity.

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When a defendant raises the defense of qualified immunity, the plaintiff bears the

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burden of showing that the right allegedly violated was clearly established. Isayeva v.

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Sacramento Sheriff’s Dep’t., 872 F.3d 938, 946 (9th Cir. 2017). To be clearly
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established, “‘existing precedent must have placed the statutory or constitutional question

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beyond debate’ although there need not be a “’case directly on point.’” White v. Pauly,

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137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). “An

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officer ‘cannot be said to have violated a clearly established right unless the right’s

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contours were sufficiently definite that any reasonable official in his shoes would have

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understood that he was violating it . . . .’” City & Cnty. of San Francisco v. Sheehan, 135

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S. Ct. 1765, 1774 (2015) (quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)).

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Courts must not define “clearly established law at a high level of generality.” Ashcroft v.

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al-Kidd, 563 U.S. 731, 742 (2011). Instead, “the clearly established law must be

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‘particularized’ to the facts of the case.” White, 137 S. Ct. at 552 (quoting Anderson v.

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Creighton, 483 U.S. 635, 640 (1987)).

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In White, an officer met two women at an off ramp after they called 911 to report

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Daniel Pauly as a “drunk driver” who was “swerving all crazy.” Id. at 549. Two

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additional officers arrived after the women left. Id. While the officers agreed that there

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was no probable cause to arrest Daniel Pauly, they decided to speak with him to get his

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side of the story and find out if he was intoxicated. Id. White, the third officer, stayed

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behind at the off-ramp in case Daniel returned. Id.

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The two officers the approached Daniel’s home and parked their cars without any

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flashing lights. Id. The officers saw lights on in the second house behind the first house

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and walked to that house. Id. They used their flashlights intermittently, and upon

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reaching the house, saw Daniel Pauly’s vehicle, and saw Daniel and his brother, Samuel

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Pauly, moving around inside the home. Id. The officers radioed White to join them. Id.

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The Pauly brothers became aware of the presence of the officers and shouted out to

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inquire who they were. Id. The officers yelled back but the brothers did not hear the

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officers identify themselves as state police. Id. at 550. Instead, they heard someone

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yelling “We’re coming in. We’re coming in.” Id.

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White parked at the first house and started walking up when he heard shouting
from the second house. Id. He arrived as he heard one of the Pauly brothers say “We
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have guns.” Id. White drew his gun and took cover. Id. Daniel fired two shots, and

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then Samuel pointed a handgun in White’s direction. Id. One of the officers fired at

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Samuel but missed and then White shot and killed Samuel. Id.

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The Court held that Officer White who shot the victim did not violate a clearly

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established right. Id. at 552. While the appellate court recognized the facts in the case

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were unique due to Officer White’s late arrival on the scene, it nonetheless held that the

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law was clearly established at the time of Samuel’s death that a “reasonable officer in

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White’s position would believe that a warning was required despite the threat of serious

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harm.” Id. at 551-52. Disagreeing with the appellate court, the Court explained that

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“[c]learly established federal law does not prohibit a reasonable officer who arrives late

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to an ongoing police action in circumstances like this from assuming that proper

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procedures, such as officer identification, have already been followed. No settled Fourth

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Amendment principle requires that officer to second-guess the earlier steps already taken

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by his or her fellow officers in instances like the one White confronted here.” Id. The

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lower courts erred erred by failing “to identify a case where an officer acting under

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similar circumstances as [Defendants were] held to have violated the Fourth

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Amendment.” Id. at 552.

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In a § 1983 action where individual civil liability is at issue, an officer can be held

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subject to personal liability “only for his or her own knowledge.” Ingram v. City of Los

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Angeles, 418 F. Supp. 2d 1182, 1190 (C.D. Cal. 2006) (citing United States v. Hensley,

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469 U.S. 221, 232 (1985)). In a subsequent decision in Chuman, the Ninth Circuit

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rejected the “team effort” theory that the trial judge instructed to the jury allowing the

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jury to lump the defendants together, rather than requiring the jury to make a

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determination as to each individual’s liability. Chuman v. Wright, 76 F.3d 292, 295 (9th

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Cir. 1996) (jury instruction error where “team effort” theory improperly removes

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individual liability and “allows a jury to find a defendant liable on the ground that even if

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the defendant had not role in the unlawful conduct, he would nonetheless be guilty if the

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conduct was the result of a ‘team effort.’”).
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Here, in her opposition to Defendants’ summary judgment motion, Plaintiff cited

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to Maxwell to argue that the law was clearly established that officers cannot detain,

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separate and interrogate the plaintiff for hours where there was no probable cause, no

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reasonable suspicion of a crime, no detention incident to a search and it was not to

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prevent the destruction of evidence. Id. at 1084-85. In Maxwell, while the specific issue

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of an individual inquiry as to each officer was not raised, the Ninth Circuit did not

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conduct an analysis as to each individual Sheriff’s deputy but lumped them in together as

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“Sheriff’s officers.” 708 F.3d at 1081, 1084 (“We conclude that the Sheriff’s officers

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were on notice that they could not detain, separate, and interrogate the Maxwells for

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hours.”).

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The Court recognizes that clearly established law must be particularized to the

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facts of each individual defendant. See White, 137 S. Ct. at 552. However, officers in

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the subsequent chain of the alleged seizure may also rely on the conduct of prior officers

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that proper procedures were followed. Id. Therefore, as to the seven individual

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defendants on the unreasonable seizure claim by Cynthia Kendrick, the Court concludes

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the appeal is not frivolous and declines to certify it as such under Chuman.

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On the issue of excessive force by Deputy Block, the Court disagrees with

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Defendants and concludes it is clearly established by the Ninth Circuit ruling in George

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v. Morris, 736 F.3d 829 (9th Cir. 2013) that Deputy Block’s conduct, relying on

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Plaintiff’s version of the facts, was a violation of the Fourth Amendment. Therefore,

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Defendants’ appeal of the qualified immunity ruling concerning Deputy Block is

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frivolous.

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Because the facts underlying the qualified immunity analyses are intertwined as to

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all the Defendants, the case will be stayed pending resolution of the interlocutory appeal

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in order to conserve judicial resources.

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Conclusion

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Based on the reasoning above, the Court DENIES Plaintiff’s motion for Chuman

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certification. The Court continues the STAY of the case in its entirety pending a ruling

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on Defendants’ interlocutory appeal. The hearing set on July 13, 2018 shall be vacated.

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IT IS SO ORDERED.

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Dated: July 10, 2018

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