Le et al v. Urquart et al

Filing 215

MINUTE ORDER denying defendant King County's 211 Motion for Certification Pursuant to 28 U.S.C. § 1292(b). Authorized by Judge Thomas S. Zilly. (SWT)

1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

4
5
6
7

BAO XUYEN LE, as Personal
Representative of the Estate of Tommy Le;
HOAI “SUNNY” LE; and DIEU HO,
Plaintiffs,

8
C18-55 TSZ

v.
9
10
11

REVEREND DR. MARTIN LUTHER
KING, JR. COUNTY; and KING
COUNTY DEPUTY SHERIFF CESAR
MOLINA,

12
13
14

MINUTE ORDER

Defendants.
The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

(1)
Defendant King County’s motion for certification pursuant to 28 U.S.C.
15 § 1292(b), docket no. 211, is DENIED. King County has asked the Court to certify for
purposes of interlocutory appeal the question of whether, taking the facts “in the light
16 most favorable” to plaintiffs, a court could determine, as a matter of law, that King
County cannot be held liable pursuant to Monell v. Dep’t of Soc. Servs. of N.Y.C., 436
17 U.S. 658 (1978), and its progeny. The Court has already answered in the negative, ruling
that genuine disputes of material fact preclude summary judgment. See Minute Order at
18 ¶ 1(b) (docket no. 178). King County nevertheless contends that it can present a solely
legal issue on appeal by assuming the truth of plaintiffs’ evidence. King County does
19 not, however, fully acknowledge plaintiffs’ version of events or all of the reasonable
inferences to be drawn in plaintiffs’ favor. Rather, King County resists plaintiff’s
20 accusation that the Use of Force Review Board’s investigation was a “sham,” and it
leaves unresolved the question of whether the shooting of Tommy Le was so unjustified
21 that Sheriff Mitzi Johanknecht should have known she needed to discipline Deputy
Molina despite the Use of Force Review Board’s findings exonerating him. See McRorie
22 v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (holding that the requisite policy or custom
“may be inferred” when a supervisory official knows about a constitutional violation and
23
MINUTE ORDER - 1

1 does not discipline the wrongdoer or otherwise rectify the situation); see also Larez v.
L.A., 946 F.2d 630, 647 (9th Cir. 1991) (indicating that ratification occurs when a
2 municipality exonerates an officer following an investigation containing “‘holes’ and
inconsistencies ‘that should have been visible to any reasonable police administrator’”);
3 Mendez v. Cty. of San Bernardino, 2005 WL 5801541 at *4 (C.D. Cal. Apr. 4, 2005)
(indicating that ratification occurs when the unconstitutional conduct is so “outrageous”
4 that “a reasonable administrator should have known that he or she should do something
about it”). Thus, King County does not present any “controlling question of law,”
5 but rather seeks review with regard to factual matters properly reserved for a jury.
Interlocutory appeal as to the Monell issues would not “materially advance the ultimate
6 termination of the litigation,” see 28 U.S.C. § 1292(b), but would instead involve the
Ninth Circuit in a purely factual controversy and force it to review the case in the context
7 of an underdeveloped record. See Johnson v. Jones, 515 U.S. 304, 316-17 (1995)
(outlining the reasons for limiting interlocutory appeals to cases presenting “neat abstract
8 issues of law”).
9
10

(2)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 28th day of June, 2019.

11

William M. McCool
Clerk

12

s/Karen Dews
Deputy Clerk

13
14
15
16
17
18
19
20
21
22
23
MINUTE ORDER - 2