Brown, II v. San Diego, City of et al

Filing 20

ORDER Denying Defendants' 10 Motion for Judgment on the Pleadings. Signed by Judge Marilyn L. Huff on 9/11/2017. (ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MELVIN BROWN, II, an individual,

Case No.: 3:17-cv-00600-H-WVG

Plaintiff,
v.

ORDER DENYING DEFENDANTS’
MOTION FOR JUDGMENT ON THE
PLEADINGS

CITY OF SAN DIEGO, a municipal
corporation; et al.,

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Defendants.

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On March 24, 2017, Plaintiff Melvin Brown, II (“Plaintiff”), filed a complaint

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against the City of San Diego (“Defendant City”), Officer George Smith, Officer Radford

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Pajita, and Officer Cassandra Heil (“Defendant Officers”) (collectively, “Defendants”),

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alleging various causes of action related to an incident with police that occurred on

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November 24, 2016. (Doc. No. 1.) Defendants filed their answer on April 19, 2017. (Doc.

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No. 4.) On July 21, 2017, Defendants moved for judgment on the pleadings and requested

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that the Court, without converting Defendants’ motion into a summary judgment motion,

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exercise its discretion to consider video of the underlying incident taken from Defendant

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Officers’ body-worn cameras. (Doc. No. 10.) On September 1, 2017, Plaintiff filed his

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response in opposition to the motion. (Doc. No. 16.) Defendants replied on September 11,

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2017. (Doc. No. 18.)
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On September 1, 2017, the parties filed a joint motion to dismiss certain parties and

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claims. (Doc. No. 15.) Specifically, the parties jointly moved to dismiss Defendant City

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and Defendant Officers Pajita and Heil, with prejudice, and to dismiss all causes of action

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except the first cause of action against Defendant Officer Smith for excessive force

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pursuant to 42 U.S.C. § 1983. (Doc. No. 15 at 2-3.) On September 5, 2017, the Court

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granted the parties’ joint motion to dismiss for good cause shown and stated that the only

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remaining claim is the first cause of action against Defendant Officer Smith. (Doc. No. 17.)

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BACKGROUND1

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Shortly after midnight on November 24, 2016, Plaintiff had an argument with his

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fiancé and, after breaking a plate and putting some personal items in his backpack, left

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their apartment. (Doc. No. 3 at 3.) Plaintiff’s fiancé, Georgina Flores, called the San

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Diego Police Department, which reported Ms. Flores’s call as a 415 (disturbing the

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peace). (Id.) Defendant Officers Smith, Pajita, and Heil were dispatched to the scene,

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entered the apartment, and locked the door. (Id. at 4.) Each Defendant Officer was

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wearing a body-worn camera at the time. (Id. at 6.) Plaintiff was still nearby and saw the

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police cars arrive at the apartment. (Id. at 4.) Concerned, Plaintiff returned to the

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apartment to check on Ms. Flores. (Id.)

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Plaintiff knocked on the apartment door, and Defendant Officer Smith

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“immediately drew a telescoping metal baton.” (Id.) Defendant Officers Smith and Pajita

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opened the door, and as Plaintiff started to comply with Officer Pajita’s instruction to

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remove his backpack, Officers Smith and Pajita grabbed Plaintiff and tried to wrestle him

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to the ground. (Id.) Defendant Officer Smith started beating Plaintiff “viciously and

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sadistically” with his metal telescoping baton. (Id.) Plaintiff was on the ground, “trying to

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protect himself,” but Defendant Officer Smith continued, hitting Plaintiff in the head,

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arms and legs. (Id.) Plaintiff was bleeding on his shin and head, and was transported to

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UCSD Medical Center for medical care. (Id.) He was later charged with assault with a

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The following factual allegations are found in Plaintiff’s complaint. (Doc. No. 3)
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deadly weapon (Cal. Penal Code § 245(a)(1)), threatening to kill Ms. Flores (Cal. Penal

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Code § 422(a)), and resisting arrest (Cal. Penal Code § 148(a)(1)). (Id. at 5.)

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DISCUSSION
I.

LEGAL STANDARDS

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A. Motion for Judgment on the Pleadings

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Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the

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pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R.

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Civ. P. 12(c). “Judgment on the pleadings is properly granted when there is no issue of

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material fact in dispute, and the moving party is entitled to judgment as a matter of law.”

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Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The Court applies the same standard

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to a Rule 12(c) motion for judgment on the pleadings as it applies to a Rule 12(b)(6) motion

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to dismiss. United States v. In re Seizure of One Blue Nissan Skyline Auto., 683 F. Supp.

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2d 1087, 1089 (C.D. Cal. 2010). The Court “must accept all factual allegations in the

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complaint as true and construe them in the light most favorable to the non-moving party.”

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Fleming, 581 F.3d at 925.

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When deciding a motion for judgment on the pleadings, the Court may consider

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materials that weren’t “physically attached to the complaint” if “the [materials’]

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authenticity is not contested and the plaintiff’s complaint necessarily relies on them.” See

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Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).

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II.

ANALYSIS

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As an initial matter, the Court declines to consider the body-worn camera video

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evidence when deciding Defendants’ motion. Plaintiff asserts there is a “factual dispute as

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to what is shown on the videos” and contests the video evidence’s authenticity, stating that

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he does not, for example, know whether “this video is all the video in the case” or whether

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the video has been edited. (Doc. No. 16 at 5-6.) Thus, Defendants’ reliance on Lihosit v.

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Flam is misplaced. (Doc. No. 10-1 at 7.) In Lihosit, the court considered body-worn camera

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video evidence when deciding a Rule 12(b)(6) motion to dismiss because the video
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evidence was “essential to a full understanding of the events underlying” the complaint

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and, importantly, the plaintiff did not dispute the video evidence’s authenticity. 2016 WL

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2865870, at *3 (D. Ariz. May 17, 2016); see also Covert v. City of San Diego, 2017 WL

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1094020, at *5 (S.D. Cal. Mar. 23, 2017) (same). If Defendants wish to file a motion for

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summary judgment, they are free to do so after the record is more fully developed. At this

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point, however, the Court will not consider the video evidence.

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Accepting, as it must, all factual allegations in the complaint as true and construing

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those allegations in the light most favorable to the non-moving party, the Court concludes

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there is a material fact issue whether Defendant Officer Smith used unreasonable force

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under the circumstances. See Graham v. Connor, 490 U.S. 386, 396 (1989). In his

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complaint, Plaintiff alleged that Defendant Officer Smith used excessive force “by

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administering holds, strikes, forcing [Plaintiff] to the ground, and multiple full-force baton

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strikes to [Plaintiff’s] body and head with a telescoping metal baton, while [Plaintiff] was

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defenseless, compliant, and not resisting, in response to a disturbing the peace call. The

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force was used without warning, when [Plaintiff] was not an immediate threat to the safety

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of the officers or others, while [Plaintiff] was not resisting nor attempting to evade arrest

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by flight.” (Doc. No. 1 at 8.) Ruling on Defendants’ motion for judgment on the pleadings,

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the Court takes these factual allegations as true. See Fleming, 581 F.3d at 925. Accordingly,

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the Court denies Defendants’ motion, but the parties may bring a motion for summary

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judgment when the record is more fully developed.

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IT IS SO ORDERED.

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DATED: September 11, 2017

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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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