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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 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., 16 Defendants. 17 18 On March 24, 2017, Plaintiff Melvin Brown, II (“Plaintiff”), filed a complaint 19 against the City of San Diego (“Defendant City”), Officer George Smith, Officer Radford 20 Pajita, and Officer Cassandra Heil (“Defendant Officers”) (collectively, “Defendants”), 21 alleging various causes of action related to an incident with police that occurred on 22 November 24, 2016. (Doc. No. 1.) Defendants filed their answer on April 19, 2017. (Doc. 23 No. 4.) On July 21, 2017, Defendants moved for judgment on the pleadings and requested 24 that the Court, without converting Defendants’ motion into a summary judgment motion, 25 exercise its discretion to consider video of the underlying incident taken from Defendant 26 Officers’ body-worn cameras. (Doc. No. 10.) On September 1, 2017, Plaintiff filed his 27 response in opposition to the motion. (Doc. No. 16.) Defendants replied on September 11, 28 2017. (Doc. No. 18.) 1 3:17-cv-00600-H-WVG 1 On September 1, 2017, the parties filed a joint motion to dismiss certain parties and 2 claims. (Doc. No. 15.) Specifically, the parties jointly moved to dismiss Defendant City 3 and Defendant Officers Pajita and Heil, with prejudice, and to dismiss all causes of action 4 except the first cause of action against Defendant Officer Smith for excessive force 5 pursuant to 42 U.S.C. § 1983. (Doc. No. 15 at 2-3.) On September 5, 2017, the Court 6 granted the parties’ joint motion to dismiss for good cause shown and stated that the only 7 remaining claim is the first cause of action against Defendant Officer Smith. (Doc. No. 17.) 8 BACKGROUND1 9 Shortly after midnight on November 24, 2016, Plaintiff had an argument with his 10 fiancé and, after breaking a plate and putting some personal items in his backpack, left 11 their apartment. (Doc. No. 3 at 3.) Plaintiff’s fiancé, Georgina Flores, called the San 12 Diego Police Department, which reported Ms. Flores’s call as a 415 (disturbing the 13 peace). (Id.) Defendant Officers Smith, Pajita, and Heil were dispatched to the scene, 14 entered the apartment, and locked the door. (Id. at 4.) Each Defendant Officer was 15 wearing a body-worn camera at the time. (Id. at 6.) Plaintiff was still nearby and saw the 16 police cars arrive at the apartment. (Id. at 4.) Concerned, Plaintiff returned to the 17 apartment to check on Ms. Flores. (Id.) 18 Plaintiff knocked on the apartment door, and Defendant Officer Smith 19 “immediately drew a telescoping metal baton.” (Id.) Defendant Officers Smith and Pajita 20 opened the door, and as Plaintiff started to comply with Officer Pajita’s instruction to 21 remove his backpack, Officers Smith and Pajita grabbed Plaintiff and tried to wrestle him 22 to the ground. (Id.) Defendant Officer Smith started beating Plaintiff “viciously and 23 sadistically” with his metal telescoping baton. (Id.) Plaintiff was on the ground, “trying to 24 protect himself,” but Defendant Officer Smith continued, hitting Plaintiff in the head, 25 arms and legs. (Id.) Plaintiff was bleeding on his shin and head, and was transported to 26 UCSD Medical Center for medical care. (Id.) He was later charged with assault with a 27                                                                   28 1 The following factual allegations are found in Plaintiff’s complaint. (Doc. No. 3) 2 3:17-cv-00600-H-WVG 1 deadly weapon (Cal. Penal Code § 245(a)(1)), threatening to kill Ms. Flores (Cal. Penal 2 Code § 422(a)), and resisting arrest (Cal. Penal Code § 148(a)(1)). (Id. at 5.) 3 4 5 DISCUSSION I. LEGAL STANDARDS 6 A. Motion for Judgment on the Pleadings 7 Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the 8 pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R. 9 Civ. P. 12(c). “Judgment on the pleadings is properly granted when there is no issue of 10 material fact in dispute, and the moving party is entitled to judgment as a matter of law.” 11 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The Court applies the same standard 12 to a Rule 12(c) motion for judgment on the pleadings as it applies to a Rule 12(b)(6) motion 13 to dismiss. United States v. In re Seizure of One Blue Nissan Skyline Auto., 683 F. Supp. 14 2d 1087, 1089 (C.D. Cal. 2010). The Court “must accept all factual allegations in the 15 complaint as true and construe them in the light most favorable to the non-moving party.” 16 Fleming, 581 F.3d at 925. 17 When deciding a motion for judgment on the pleadings, the Court may consider 18 materials that weren’t “physically attached to the complaint” if “the [materials’] 19 authenticity is not contested and the plaintiff’s complaint necessarily relies on them.” See 20 Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). 21 II. ANALYSIS 22 As an initial matter, the Court declines to consider the body-worn camera video 23 evidence when deciding Defendants’ motion. Plaintiff asserts there is a “factual dispute as 24 to what is shown on the videos” and contests the video evidence’s authenticity, stating that 25 he does not, for example, know whether “this video is all the video in the case” or whether 26 the video has been edited. (Doc. No. 16 at 5-6.) Thus, Defendants’ reliance on Lihosit v. 27 Flam is misplaced. (Doc. No. 10-1 at 7.) In Lihosit, the court considered body-worn camera 28 video evidence when deciding a Rule 12(b)(6) motion to dismiss because the video 3 3:17-cv-00600-H-WVG 1 evidence was “essential to a full understanding of the events underlying” the complaint 2 and, importantly, the plaintiff did not dispute the video evidence’s authenticity. 2016 WL 3 2865870, at *3 (D. Ariz. May 17, 2016); see also Covert v. City of San Diego, 2017 WL 4 1094020, at *5 (S.D. Cal. Mar. 23, 2017) (same). If Defendants wish to file a motion for 5 summary judgment, they are free to do so after the record is more fully developed. At this 6 point, however, the Court will not consider the video evidence. 7 Accepting, as it must, all factual allegations in the complaint as true and construing 8 those allegations in the light most favorable to the non-moving party, the Court concludes 9 there is a material fact issue whether Defendant Officer Smith used unreasonable force 10 under the circumstances. See Graham v. Connor, 490 U.S. 386, 396 (1989). In his 11 complaint, Plaintiff alleged that Defendant Officer Smith used excessive force “by 12 administering holds, strikes, forcing [Plaintiff] to the ground, and multiple full-force baton 13 strikes to [Plaintiff’s] body and head with a telescoping metal baton, while [Plaintiff] was 14 defenseless, compliant, and not resisting, in response to a disturbing the peace call. The 15 force was used without warning, when [Plaintiff] was not an immediate threat to the safety 16 of the officers or others, while [Plaintiff] was not resisting nor attempting to evade arrest 17 by flight.” (Doc. No. 1 at 8.) Ruling on Defendants’ motion for judgment on the pleadings, 18 the Court takes these factual allegations as true. See Fleming, 581 F.3d at 925. Accordingly, 19 the Court denies Defendants’ motion, but the parties may bring a motion for summary 20 judgment when the record is more fully developed. 21 IT IS SO ORDERED. 22 DATED: September 11, 2017 23 24 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 25 26 27 28 4 3:17-cv-00600-H-WVG

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