Shepherd v. Crawford et al, No. 1:2008cv00128 - Document 104 (E.D. Cal. 2010)
Court Description: ORDER denying 96 Motion for Attorney Fees, signed by Judge Oliver W. Wanger on 1/6/2010. (Coffman, Lisa)
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Shepherd v. Crawford et al Doc. 104 1 2 3 4 UNITED STATES DISTRI CT CO URT 5 6 7 8 FOR THE EASTERN DISTRICT OF C ALIFORNIA MARGARET A. SHEPHERD Plain tiff, 9 v. 10 11 12 Defen dant. 14 16 17 18 MEMORANDOM DEC ISION AND ORDER RE DEFEN DANTS’ REQUEST FOR ATTORNEYS FEES ( DOC. 96) OFFICER GARRETT CRAW FORD, et al., 13 15 1:08-CV- 00128 OWW DLB I. INTRODUCTION Prevaili ng Defendant s, individual Police Officers with the City of Mod esto Police Department, seek to recover attorney’s f ees incurred defending themse lves 19 against a civil comp laint brought by Plaintiff Margare t 20 A. Sheph erd. 21 attorney ’s fees purs uant to Federal Rule of Civil 22 23 24 25 26 Defend ants assert they are entitled to Procedur e 37(c)(2), because Plaintiff denied cert ain requests for admissi on regarding her allegations of liabilit y. Doc. 96 at 10-11. Alternativel y, sev eral of the Offi cer Defendan ts move to recover their defe nse 27 costs as sanctions u nder Federal Rule of Civil Pr ocedure 28 11, on t he ground th at Plaintiff continued to pro secute 1 Dockets.Justia.com 1 her case against the m despite clear evidence conf irming 2 they wer e “uni nvolved” in her arrest. 3 4 5 6 7 Id. at 11- 13. Finally, Defendants rely on California Code of Ci vil Procedur e § 1038, wh ich authorizes a court to ord er reimburs ement of att orney’s fees incurred defendi ng against any claim br ought under the California To rt 8 Claims A ct (“CTCA”) upon a finding that the claim s were 9 not brou ght in good faith and with reasonable cau se. 10 Defendan ts assert th at Plaintiff brought her acti on 11 against the five “un involved” officers without re asonable 12 13 14 15 16 cause, a nd maintaine d claims against them d espite the fact tha t discovery “confirmed that only two of t he seven officers ever touche d her or were in any way invo lved in her arre st.” Doc. 9 6 at 14. Defendants seek a f ee award 17 of $77,3 71.25, repre senting half (50%) of the fee s 18 incurred by De fendants in defending against Plain tiff’s 19 claims. 20 21 22 23 24 Id. a t 2. 1 Plaintif f alleged th at Defendant Officers used excessiv e force inci dent to her January 14, 2007 arrest outside a nightclub in Modesto, California, causi ng her injuries . She origi nally asserted four cla ims ba sed u pon 25 1 26 27 28 De sp it e oc ca si on al ly me nt io ni ng “ c ost ” re co ve ry , th is m oti on doe s no t re qu es t an y cos t aw ar d, n o r a re a tt or ne ys f ee s sou gh t un de r 42 U. S. C. s ec ti on 1 98 8. D ef en da nt s po in t ou t th at t he y sep ar at el y fil ed a b il l of c os ts on J ul y 2, 2 0 09, i n th e am ou nt o f $8, 17 1. 33 , to wh ic h Pl ai nt if f ha s f il ed n o ob j ect io ns . R ec ov er ab le co st s un de r 28 U. S. C. s ec ti on s 19 20 an d 19 21 a r e n ot h er e in i ss ue . 2 1 allegati ons of exces sive force and wrongful arres t: 2 (1) Viol ation of Tit le 42, United States Code, Section 1983 a gainst indi vidual defendants City of Modest o Poli ce Se rgeant Garret Crawford, and City o f Mod esto Police Officers Douglas Griepp, David Angaro le, Todd Musto, Jo seph P iment al, Tony Scopesi, and Yair Oaxac a as d efend ants; 3 4 5 6 (2) Assa ult and batt ery against all individual defendants; 7 (3) Fals e arrest aga inst all individual defendants; an d 8 9 (4) Viol ation of Sec tion 1983 against the C ity of Modesto rel ated t o all eged training and/or supervi sion d efici encies. 10 11 12 13 14 15 16 17 Doc. 1, filed Jan. 2 5, 3008. Plaintiff voluntari ly dismisse d the false arrest claim as to all defend ants, Doc. 37, filed Mar. 30, 2009, as well as all clai ms against Officers Ang arole and Musto, Doc. 40, filed Mar. 24, 2009 . Defendan ts’ motion f or summary judgment was grant ed 18 in part. 19 granted as to all re maining claims against Office rs 20 Pimental , Scopesi, a nd Oaxaca. 21 22 23 24 25 Doc. 45, A pr. 7, 2009. Summary judgmen t was Id. Although Defendan ts’ motion f or summary j udgment as to Plaintiff’s Mon ell claim fo r municipal liability against the City of Modesto was deni ed, the part ies stipulated to dismissal o f that claim on May 14, 200 9. Doc. 56. Plaintiff’s § 1 983 26 excessiv e force and state law assault and battery claims 27 against Sergeant Cra wford and Officer Griepp proc eeded to 28 3 1 2 3 4 trial. See Do c. 50 (Pretrial Order) at 4. A four-d ay jury tria l commenced June 9, 2009, Doc . 84, and the jury ret urned verdicts in favor of bo th Defendan ts on June 1 7, 2009, Doc 88. 5 6 II. BACKGROUND 7 Defendan ts assert th at, once depositions were 8 complete d, Plaintiff should have known certain of her 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims w ere without foundation. The March 30, 20 09 summary judgment dec ision summarizes the incident based on those depos itions: It is un disputed tha t the events giving rise to Plaintif f’s arrest t ook place at approximately 1:00 a.m . on January 14, 2007. Compl. at ¶ 6. At that tim e, Plaintiff was at a club called the Copper R hino Sun in the downtown entertainment district of Modesto, California, with approxim ately ten ot her individuals celebrating the twen ty-fir st bir thday of Plaintiff’s so n. Id. It is also undisputed that Plaintiff consumed three drink s that evening, a small glass of champagne a nd two white Russians. Margaret Shepherd De po. at 32, 43-44, 47-48 . In almost a ll other res pects, the parties’ versions of the e vents of tha t evening are in conflict. Accordin g to the own er of the Copper Rhino, Mr. Leslie K noll, Plaint iff’s group was loud and obnoxiou s, and at le ast o ne m ember of the g roup was insu lting other customers. Knoll Depo. at 13. Afte r unsuccessf ully requesting Plaintiff’s group to quiet down, Mr. Knoll contacted one of his priv ate security guards (Defendant Griffin Dye) and told him to remove Plaintiff ’s gro up from the bar. Id. at 13-14. D ye then inform ed one of t he members o f the group, Larry McKenzie, that he was being “a problem” and would have to be walke d outside. D ye Depo. at 21. Accordin g to Plainti ff, Larry ended up on the ground w ith Dye standing over him. M. Sheph erd Depo. at 77. One of Plaintiff’s sons, Lucas 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shepherd , hollered a t Dye “What are you doing? He’s jus t wanting to get his hat.” Id. Then, accordin g to Plainti ff, there was a lot of pushing and shoving, with people trying to get out of t he club. Id. at 7 8; see also Amy Shepherd Depo. at 20 . Plaintiff recalls that Dye then gra bbed her son Lucas around the neck in a choke ho ld. Id. Othe r wit ness es, including Lucas, r ecall that L ucas ended up being thrown to the g round by one of the bouncers, possibly Dye. Whe eler Depo. a t 20- 22; L. Shepherd Depo. at 26, 2 9-30. In contr ast, Dye rec alls that Larry began to leave th e premises p eacefully and that some other me mbers of the group began to gather up their th ings to leav e with him. Dye Depo. a t 23. However, as Dye and Larry were leaving the club’s p atio, where Larry and the others had been soc ializing, Dy e heard someone yelling from behind h im. Id. at 2 3-24. Dye turned around and observed Lucas, who had just entered the patio area fro m the bar, running after him. Id. a t 24. The next thing Dye s aw was “the ground.” He cannot r ecall whethe r Lucas knocked him to the ground, or whether h e was knocked to the ground by the r ush of other s leaving the club. Id. at 25. Accordin g to Knoll, the club’s owner, the situatio n escalated, resulting in individuals within P laintiff’s g roup hitting the security guards. Knoll Depo. at 19. At some point, eithe r while the party was moving outside or shortly a fter, officers from the Modesto Police Depar tment began arriving on the scene. O ne of the fi rst officers to arrive was Sergeant Crawford, w ho observed what he characte rized as “a large melee.” Crawford Depo. at 41. C rawford noti ced eight or nine individu als actively engaged in fighting with security guards on the sidewalk. In r espons e, the secu rity guards were attempting to place handcuff s on certain individuals and trying to arrest t he assailant s. Id. at 32. A number of police o fficers eventually responded to the s cene, includ ing at least two on horsebac k. These off icers bec ame occupied w ith the appr ehension of various individuals and/or restorin g order to t he scene. Accordin g to Sergean t Crawford, as he approached the crow d, his atten tion was drawn to a white, 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 female a dult (later identified as Plaintiff), because she was on t he back of a security officer (Dye). She a ppeared to have her right arm arou nd the secur ity officer’s throat, holding him in a hea d lock. Crawford recalls that Pla intiff’s fee t were off the ground, as though s he was “ridi ng” on the security officer’ s back. Id. at 33, 46. Crawfo rd obs erved that the same securi ty officer was attempting to place ha ndcuffs on a male subject. Id. at 46-47. In respo nse, Sergean t Crawford claims he approach ed Plaintiff , grasped her free (left) arm with his left hand, and identifie d hims elf loudly a s a Modesto Police Officer. Id. at 33. She did not respond. Id. Plai ntiff remained on the guar d’s back, sc reaming: “Let go of my son.” Id. at 47. Crawford believed th at the guard was in “obvious distress ” during thi s alterca tion, because he was in a headlock wh ile trying to handcuff someone. Id. at 47. Crawford again yelled in Plaintif f’s presence that he was a police officer, while still holding on to her left arm with his left hand. Id. at 49-50. Cra wford then took Pla intiff’s lef t arm and pulled it up behind h er back. Id. at 5 0. He ordered her for a third ti me to releas e the guard and again told her he w as a police officer. Id. at 5 2. Cra wford then put his right h and on her right shoulder and pull ed it straig ht back, away fro m the security officer. Id. Her arm came ou t from around t he guard’s n eck, and she fell backward. Id. at 53. According to Crawford, Plaintiff landed o n her feet a t first, but then stumbled and bump ed into some one else, knocking that person t o the ground and falling on top of that person. Id. Th at cau sed C rawf ord to lose hi s grip on her. Id. At this point, accor ding to Crawford, Plaintiff became h ysterical, s creaming about why her son was bein g arrested, flailing her arms and feet “in all directions, striking out, hit ting a nd kicking anybody in t he area.” Id. at 56. Crawford asserts tha t “[t]rying to gain control of [Plai ntiff’s] han ds and feet was quite dangerou s at that po int.” Id. at 57. Crawford was stan ding on his feet, bending over at his waist, t rying to gra b her hands and p lace her in handcuff s. Id. Although he was able to get one of her h ands, he cou ld not grab the other one. Id. That is when Officer Griepp approached. Id. Crawford waived him over to assist. Griepp was able to grab the oth er arm. Id. She was sti ll 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 screamin g hysterical ly and resisting arrest. She managing to pull awa y several times as they placed h er in handcu ffs. Id. at 64-64. Crawford maintains t hat neither officer placed his knee s on her bac k. Id. at 64. Crawford asserts that h e purp osefu lly avoided doing so, because lowering him self to the ground would have all owed her fla iling arms and feet to hit his body . Id. Crawfo rd wa s al so concerned a bout a nearby horse, belo nging to a mounted policema n. Crawford did not want to go any lower on the g round, to av oid potential contact with the hors e. Id. Once Pla intiff was u ltimately restrained, Officers Crawford an d Griepp escorted Plaintiff to a pat rol car and placed her in the back seat of that car, where s he stayed until being transpor ted to another police vehicle for transpor t to jail. Id. at 68: 8-19. Crawford ’s version o f events is corroborated by Knoll, w ho testified that he personally observed “the pol ice dragging a lady off who was trying to choke [Dye].” Kno ll Depo. at 20-21. Knol l stated: “It looked l ike she was on the pile and was tryi ng to either hit or choke him. I just caught a glimpse of it, so I don’t know exactly. ” Id. at 21. For his part, Dye do es not recall anyone trying to choke him that ev ening, nor does he have any recollec tion of Plai ntiff. Dye Depo. at 33. Plaintif f’s recollec tion of the arrest is dramatic ally differe nt [from] Crawford’s. She asserts that she was propelled outside the club onto the sidewalk wi th the rush of bodies leaving the club. M. Shepherd Depo. at 83. Observin g one of the security guards with his arm arou nd her son L ucas’ neck, she yelled: “What ar e you doing to my son?” Id. The gua rd did not acknowledge her. Id. She then reached up to touch the bouncer ’s arm in order to get his attentio n because she wanted to know what he was doing to her son. Id. at 82. Then, wi th no warning or provocati on, someone pulled her right arm back and she fel t a pain in her shoulder. Id. at 8 8. Then, her feet left the ground and she was slammed face first into the ground, onto her ches t. Id. at 89. Plaintiff then recalls feeling a great deal of pressure and pain in her back. Id . at 91. She felt a weight on her back and her arms were pu lled behind her. Id. at 92. 7 1 She reca lls that she “couldn’t breathe,” and her arms fel t like they were going to be pulled off. Id. at 92-93. She wa s trying to gasp for ai r and then “st arted seeing stars.” Id. at 9 3. Nex t, she felt pain on her wrists. She assumes this was caus ed by the of ficers putting handcuffs on her. Id. at 94. She was “ yank ed up to [her] feet,” a t which time she realized police officers were presen t. Id. at 95-96. She wa s then gui ded to a pol ice car. Id. at 9 6-97. 2 3 4 5 6 One witn ess recalls that Crawford “jumped down onto [Pl aintiff’s] b ack, and [ ] had his knees in her b ack.” Wheele r Depo. at 25. Others corrobor ate that at least one of the officers had his knees in her back. A. Shepherd Depo. at 29; D. S hepherd Depo . at 45. 7 8 9 10 It is un disputed tha t at the time of the incident , Plaintiff was over 50 yeas of age, was 5 feet, 4 inches tal l, and weighed 150 poun ds. Id. at 80. Crawford was 5 feet, 10 inches tall, and weig hed 230 poun ds. 11 12 13 Ultimate ly, Plaintif f was cited for a violation of Calif ornia Penal Code section 148 for delaying and obstruc ting a police officer. The police r eport states : 14 15 On 1-14-07 at approximately 0 051 hours I responde d to a repor t of a fight at the Copper R hino on 10th St. On arrival I saw a security guard attem pting to handcuff a suspect on the sidew alk (D) grabbed the security guard aroun d the neck from behind and atte mpted to pul l him from her son, Andrew S hepherd. I o rdered (D) to release the guar d and she re fused. I pulled (D) by her arms away from t he guard and she fell to the grou nd on top of a bystander. (D) began to punch and kick at anyone she could while on the g round. I tol d (D) she was under arrest a nd to stop f ighting. (D) refused and continue d to fight. (D) was handcuffed by Officer Griepp and m yself. (D) booked to Stanisla us County ja il. 16 17 18 19 20 21 22 23 24 Arrest R eport prepar ed by Sergeant Crawford, Ex. P to Gil bert Decl. , Doc. 30-4 through 30-10. 25 26 Doc. 43 at 2-8 , 2009 WL 839943, *1-*4 (E.D. Cal M ar. 3 0, 27 2009). 28 8 1 The Marc h 30, 2009 S ummary Judgment decision also 2 reviewed deposition evidence regarding the claims against 3 4 5 6 7 8 9 10 11 12 13 Officers Pimental, S copesi, and Oaxaca. Plaintiff cou ld not spec ifically rec all “which officers did what” : I don’t know which o fficers did what. I just know one or two of t hem threw me to the ground and wren ched my arms back so hard I thought they were goi ng to be rip ped from the sockets at my shoulders and then excruciating pain in my back making m y body bow u p backwards and being unable to breat h. Then bein g yanked up by the handcuffs on my wr ists, shoved to a police care (sic) and thrown i nto the back of it. When I tried to convey m any times th e pain I was in a nd tha t I couldn’t breath, at one point I was told, “If I could op en my big mo uth, I could breath.” and while be ing transpor ted in the police car, I stated t he bouncer s hould not have touched my son; the officer rep lied “Maybe you should have stayed o ut of our to wn.” 14 2009 WL 839943 at *5 (record citations omitted). 15 person t estified tha t any other officer interacte d with 16 17 18 19 20 No Plaintif f, except Cr awford and Griepp. The Marc h 30, 2009 D ecision rejected Plaintiff’s argument that Piment al, Scopesi, and Oaxaca could be h eld liable f or failing t o intercede on her behalf, re asoning 21 that the undisputed facts did not support imposit ion of 22 liabilit y on this th eory: 23 24 25 26 27 28 Plaintif f has not id entified any facts suggesti ng any of th e three officers were in any way invo lved in her physical restraint and/or arrest. Instead, she argues that Officers Pimental , Scopesi, a nd Oaxaca must have been aware th at she was b eing subjected to “constit utionally un reasonable force during her arrest,” but “did no thing to prevent the ab use” and ther efore should be “subject to personal liabilit y for their failure to act.” Doc. 342 at 8. In su pport of her theory of liability, 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintif f cites Byrd v. Clark, 783 F.2d 1002, 1007 (11 th Cir. 1986 ), abrogation on other grounds recognized by Nol en v . Isbell, 207 F.3d 1253, 12 55-56 (11th Cir. 2000 ), which held that when “a police offic er, whether supervisory or not, fai ls or refuse s to intervene when a constitu tional viola tion such as an unprovoked beating takes place in his presence, the officer is direc tly liable u nder Section 1983.” Defendan ts rejoin by citing a line of California cases wh ich stand fo r the proposition that police o fficers do n ot generally owe a duty of care to protect memb ers of the public, unless a special relationship is established. For example, Davidson v. City of Westminster, 32 Cal. 3d 197 (1982), held that officers conducti ng surveilla nce of a business were under no duty to warn an i nnocent third party known to be alone on the prem ises of the arrival of a suspecte d assailant. Neither the decision to conduct the surveill ance, the observation of the potentia l assailant in the victim’s presence, nor the recognition of the assailant as the likely p erpetrator o f a previous assault created a “speci al relations hip” between the victim and the poli ce that gave rise to a duty to act or warn. Id . at 206-207 ; see als o Williams v. State, 3 4 Cal. 3d 18 (1983) (California sta te highway patrol offic er has the right, but not the duty to investig ate accidents, or come to the aid of stranded motor ists , and that sto pping to aid a n injured or stranded motorist does not, in itsel f, create a special relationship which gives ri se to an aff irmative duty to secure informat ion or prese rve evidence for civil litigati on between t he motorist and third parties) . But, the Ninth Circu it recognizes that “police officers have a duty to intercede when their fellow o fficers viol ate the constitutional rights o f a suspect or other citizen.” Cunningh am v. Gates, 229 F.3d 1271, 1 289 (9 th Cir. 200 0).... “[O]fficer s can be held liab le for fail ing to inter cede only if they had an opportun ity to inter cede.” Cunningham, 229 F.3d 1289. If an officer was not present, or had “no realisti c opportunit y to intercede,” no liabilit y will attac h. Id. There is scant autho rity applying “fa ilure to interced e” liability in the context of the use of exces sive force. In the corrections context, a prison guard has a n affirmative duty to 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interven e on behalf of a prisoner if other officers are violati ng the prisoner’s constitu tional right s in his presence, or i f he knows th at the priso ner’s rights are being violated . Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir . 1995). How ever, there must be a causal connecti on between t he defendant and the deprivat ion of a con stitutional right. Johnson v. Duffy , 588 F.2d 7 40, 743 (9th Cir. 1978). In the poli cing context , where defendant officers failed t o act in the presence of an alleged use of exces sive force b y other officers, “factors such as whether the defendant had reasonable time to intervene, and whether the defendant had tacitly collaborated with the officers using force sh ould be cons idered.” Garcia v. Grimm, 2007 WL 2778360, *6 (S.D. Cal.2007) (citing O’Neill v. Krzeminsk i, 839 F.2d 9, 11 (2d C ir. 1988). T he reasoning of the Second Circuit in O’Neill is instructi ve: In this case, the cl aim that [Officer] Conners became liabl e for use of excessive force by failing to intercede must be assessed separately with respect to the acts of [Offi cers] Fioril lo and Krzeminski in striking O’Neill and the act of Krzeminski in dragg ing O’Neill across the floor by his throat. Even when th e evidence is viewed in the ligh t most favor able to the plaintiff, there is insufficien t evidence to permit a jury rea sonably to c onclude that Conners’ failure to intercede was a pr oximate cause of the b eating. The three blows were struck in such rapid succes sion that Conners had no realisti c opportunit y to attempt to prevent them. Th is was not a n episode of sufficient duration to support a conclusion that an officer who stood by without trying to assist t he victim be came a tacit collabor ator. With r espect to the subsequent dragging of O’Neill across the floor, however, the case ag ainst Conners is adequate to create a n issue of fact for the jury. Ha ving seen th e victim beaten, he was alerted to the need to protect O’Neill from further abuse. Thoug h not a guarantor of O’Neill’ s safety in the face of brutality administ ered by othe r officers, Conners can be found liable for deliberately choosing not to m ake a reason able attempt to stop Krzemins ki. Id. at 11-12. Critic ally, the evidence in O’Neill subjected th e officer to liability for 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “deliber ately choosi ng not to make a reasonable attempt” to stop ano ther officer’s allegedly unconsti tutional con duct because he actually observed that conduct. Here, in contrast, t he relevant testimony of Oaxaca, Pimental, an d Scopesi, which is undisput ed, indicate s that none of the three officers observed Cr awford and/or Griepp placing Plaintif f under arre st. Officer Oaxaca, who was Griepp’s part ner at the time of the incident , arrived on the scene with Griepp i n their poli ce cruiser. As soon as they got out of the car, Griepp went to assist Crawford , and Oaxaca turned in the other directio n to “protec t them from the surrounding crowd.” Oaxaca Depo. at 2 0. O axaca did not see Griepp a nd Crawford arrest Plaintiff because he had his back to them the entire time. Id. Plaintif f emphasizes that, according to Crawford ’s version o f the event, Plaintiff was screamin g hysterical ly as she was being handcuff ed. Plaintiff argues that even if Oaxaca had his back to Plai ntiff during the arrest, Oaxaca m ust have hea rd her screaming, as it is undisput ed that he w as positioned only a short distance from the si te of Plaintiff’s arrest. However, Oaxaca was not asked during his depositi on whether h e heard Plaintiff screaming over the noise of th e melee. Plaintiff’s claim is based on no more than speculation. Plaintiff has no f acts to supp ort her assertion that Oaxaca a ctually obse rved (either visually or auditori ly) the alle gedly unconstitutional conduct. Accordingly , no reasonable finder of fact cou ld conclude that Oaxaca had a duty to interven e on Plainti ff’s behalf. Oaxaca is entitled to summary judgment on the First Cause of Actio n. Officer Pimental, wh o responded to th e Copper Rhino on horseback, testified at his deposition that he observed Pla intiff on top of a “dog pile” of people. Pim ental Depo. 19-20. He observed Sergeant Cr awford arrive on the scene, but did not have an opportunity to observe any of Crawf ord’s conduc t toward Plaintiff because his atte ntion was di verted toward other people coming o ut of the Co pper Rhino. Among other things, Pimental was distracted by another member o f Plaintiff’ s group, Melody Wheeler, who was tryi ng to move a round his horse toward the pile of people. Id. at 22. Pimental i nstruc ted 12 1 her not to move arou nd his horse and to back away, bu t she did no t comply. Id. at 23. Pimental grabbed Whe eler and escorted her away, at which time he han ded her off to a ground officer to place her in the car for h im. He then placed W heeler under arrest. Id. Agai n, the re is no evide nce which wo uld permit a reasonable finder o f fact to co nclude that Pimental had a duty to intervene on Plaintiff’s behalf. 2 3 4 5 6 Officer Scopesi, who was also on horseback, trying t o control th e crowd, observed Plaintiff “on the back of a se curity officer” with her “arm aro und [his] ne ck from behind.” Scopesi Depo. at 22. However , that was all he observed in conne ction with P laintiff. He did not see officer Crawford app roach or take any actio ns in connecti on with the arrest, because he was dealing with the cro wd. Id. at 25. No reasonable finder o f fact could conclude that Scopesi had a duty to intervene on Plaintiff’s behalf. 7 8 9 10 11 12 Plaintif f has no evi dence suggesting that Officers Oaxaca, Pim ental, or Scopesi observed Crawford and Griepp’ s conduct in connection with her arre st. Defendan ts Oaxaca, Pimental, and Scopesi are entitled to summary judgment on the [Section 1983] Cause of Action. 13 14 15 16 17 2009 WL 839943 at *6 -*8. The March 30, 2009 Deci sion also con cluded that neither Oaxaca, Pimental, nor Scopesi 18 could “p ossibly be l iable for assault and battery upon 19 Plaintif f, as it is undisputed that none of them touched 20 her.” 21 22 23 24 25 26 27 28 I d. at *8 n.3 . Defendan ts Crawford and Griepp’s motion for summary judgment on the § 19 83 excessive force claim on q ualified immunity grounds was denied because material fact s were in dispu te: Here, a melee, a pot ential riot, is a dangerous disturba nce. However , there are considerable factual disputes abo ut the nature of Plaintiff’s actions prompting th e use of force and whether she resi sted arrest. The reasonableness of the 13 1 officers ’ belief tha t their conduct was lawful cannot b e determined on summary judgment. Viewing the facts in a light most favorable to plaintif f, if she wa s onl y tr ying to get th e security guard’s att ention to make a request and did not resist arres t, a reasonable finder of fact cou ld conclude that the force applied in this cas e was object ively unreasonable under the circumst ances. This is exactly the ty pe of factual dispute that is not amenable to summary adjudica tion. 2 3 4 5 6 7 8 9 10 11 12 13 Id. at * 14. Although the state l aw assault and battery claims against Crawford and Griepp were not directly add ressed in the M arch 30, 200 9 Decision, a similar conclus ion can be impli ed, as these state law claims would have turne d on the s ame, dispute d material facts. 14 15 16 17 18 19 20 III. DISCUSSI ON As a gen eral rule, a prevailing defen dant i s entitled to an at torney’s fee award under a civil rights f ee shifting statute onl y if the plaintiff’s claims w ere “frivolo us, unreason able, or without foundation, even though n ot brought i n subjective bad faith.” 21 Christia nsburg Garme nt Co. v. EEOC, 4 34 U.S. 412, 421 22 (1978). 23 enforcem ent of civil rights laws, “a distri ct cou rt mu st 24 exercise caution in awarding fees to a prevailing 25 26 27 28 Because Con gress intended to promote vig orous defendan t in order t o avoid discouraging legitima te suits that may not be ‘air tight.’” See EEO C v. Bruno's Restaura nt, 13 F.3d 285, 287 (9th Cir. 1993 ). 14 The 1 Supreme Court warned in Chris tiansbur g agai nst the 2 “temptat ion to engag e in post hoc reasoning by co ncluding 3 4 5 6 that, be cause a plai ntiff did not ultimately prev ail, his action m ust have bee n unreasonable or without foundati on.” 434 U. S. at 421-22. Perhaps for this rea son, Defendants do not rely 7 8 directly on a federa l fee shifting statute, and i nstead 9 base the ir fee petit ion on Federal Rules of Civil 10 Procedur e 37 and 11, as well as California Code o f Civil 11 Procedur e § 1038. 12 13 14 15 16 T hese provisions must be appli ed in the usua l manner, no twithstanding the general disincli nation for a warding fees to prevailing ci vil rights d efendants. Roadw ay Exp., Inc. v. P iper, 447 U .S. 752, 763 (1980) (rej ecting argument that civil ri ghts fee 17 shifting statutes su pplant other mechanisms of ci vil 18 procedur e designed to sanction counsel for “dilat ory 19 conduct” ). 20 21 A. Rule 37( c)(2) Sancti ons. 22 Defendan ts assert th ey are entitled to an attorne y 23 fees awa rd pursuant to Federal Rule of Civil Proc edure 24 37(c)(2) , because Pl aintiff denied certain reques ts for 25 admissio n regarding her allegations o f liab ility. 26 27 28 Doc . 96 at 10 -11. Througho ut her disco very responses, Plaintiff mad e it 15 1 clear th at she “d[id ] not know which officers did what” 2 to her p erson. 3 4 5 6 7 See, e.g., Re sponses to Interrogatorie s No. 1, 7 , 8, 9 & 10, quoted in Doc. 96 at 6-7. P laint iff refused to admit to the following requests for ad mission served b y Officer Oa xaca, one of the “uninvolved” officers : REQUEST FOR ADMISSIO N NO. 1: Admit th at Officer 0 axaca3 did not contact Plaintif f at any tim e during the incident giving rise to this litigat ion. 8 9 10 RESPONSE TO REQUEST FOR ADMISSION NO. 1: Deny. 11 12 REQUEST FOR ADMISSIO N NO. 3: Admit th at Officer O axaca did not exercise any force ag ainst Plaint iff at any time regarding the inci dent giving rise to this litigation. 13 14 15 RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. 16 17 18 REQUEST FOR ADMISSIO N NO. 4: Admit th at Officer O axaca is not liable to you for the incident giv ing rise to this litigation. 19 20 RESPONSE TO REQUEST FOR ADMISSION NO. 4: Deny. 21 22 See Doc. 96 at 7. 23 similar requests for admission, which Plaintiff l ikewise 24 denied. 25 26 27 28 The other “uninvolved” officers ser ved Id. A party who fails to admit a request for admissio n risks an award of ex penses, including attorneys’ fees and costs, i ncurred by t he other side in proving the matter 16 1 at trial . 2 provides : 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Fed . R. Civ. Proc. 37(c)(2). Failure to Admit. If a party fails to admit what is reque sted under R ule 36 and if the requesting party la ter proves a document to be genuine or the matt er true, the requesting party may move that the party who failed to admit pay the reasonab le expenses, including attorney’s fees, incurred in making t hat proof. The court must so order un less: (A) the request was held objectionable under Rule 36( a); (B) the admission so ught was of no substantial importan ce; (C) the party failin g to admit had a reasonable ground t o believe th at it might prevail on the matter; or (D) ther e was other good reason for the failure to admit . “The Rul e mandates a n award of expens es unl ess an 17 exceptio n applies.” 18 F.3d 933 , 936 (9th C ir. 1994). 19 20 21 22 23 24 25 26 27 28 Ru le 37( c)(2) Marchand v. Mercy Medi cal Ce nter, 22 Enforcem ent encourag es attorneys and parties to identify undisputed issues early to avoid unnecess ary costs. F ailure to identify those issues w astes the re sources of parties and courts. The Fede ral Rules are intended “to secure the just, sp eedy, and in expensive determination of every ac tion.” Fed. R. Civ. P. 1. Parties may not view requests fo r admission as a mere procedur al exercise requiring minimally acceptab le conduct. They should focus on th e goal of the Rules, f ull and efficient discovery, not evas ion and word play. Id. (in ternal citations and footnote omitted). 17 1 2 3 4 5 6 7 8 9 Defendan ts maintain that the matters denied by Plaintif f were direc tly determined by the March 3 0, 2009 summary judgment ruling that the five uninv olved offic ers were not involved in Plaintiffs arrest, did not e xercise any forc e against Pl aintiff, and were not liable to Plaintif f for the in cident giving rise to this litigati on. Doc. 43 at 10-16. In Marchand, r elied upon by Defendant, plai ntiff 10 became a quadriplegi c after doctors failed to dia gnose a 11 fracture in his spin e. 12 13 14 15 16 A jury found several medi cal professi onals neglig ent in connection with their provisio n of care to plaintiff. One defendant, D r. Farris, was asked to admit: “That the care and tr eatment provided ... by [Dr. ] Farris failed to comply wit h the 17 applicab le standard of care which existed ... on that 18 date.” 19 20 21 22 23 24 Farris respo nded, “denied.” 22 F.3d at 9 37. Farris a rgued that R ule 37(c) sanctions should no t be imposed because he h ad “reasonable ground to beli eve” that he might prevai l on the negligence issue. Civ. P. 37(c)(3). F ed. R. A fter examining the evidence, the Ninth Ci rcuit conclu ded that, even though one exp ert 25 testifie d “that Farr is satisfied the standard of care in 26 all resp ects,” Farri s, “knowing he removed the ce rvical 27 collar b efore obtain ing a full series of cervical spine 28 18 1 x-rays, could not un der the circumstances have re asonably 2 denied h is negligenc e.” 3 4 5 6 7 8 Likewise , Farris was also asked to admit: “Marchand’s quadripl egia was cau sed by movement of his spine that could ha ve been avoi ded if proper immobilization had been maintain ed after he was admitted.” 11 12 13 Id. 14 were app ropriate: The Ninth Circu it concluded that Rule 37 sanctions 15 [T]o aid the quest f or relevant information parties should not s eek to evade disclosure by quibblin g and object ion. They should admit to the full est extent p ossible, and explain in detail w hy other por tions of a request may not be admit ted. 16 17 18 Farris c ould have pr ovided frank answers to these re quests, whic h were clearly designed to establis h causation. Or he could have “set forth in detai l the reason s why [he could not] truthful ly admit or deny the matter.” Fed. R. Civ. P. 36(a). He di d nei ther , relying on unfounde d objections to the wording, instead of admittin g the uncont estable question: were Marchand 's injuries caused by movement of the spine th at could hav e been avoided had proper immobili zation been maintained? 19 20 21 22 23 24 27 28 Farris Defendan ts object to this Request for Admission on the g rounds that it is compound, a mbiguo us, and beca use the use of the phrase “avoidable movement ” is vague a nd undefined. Without waiving such objecti ons, the Request for Admissio n, couched i n its present form, must be denied. 10 26 Id. at 938. answered : 9 25 Id. Id. (int ernal citati on omitted). 1. Were Plaintiff’s Denials Ju stified? Here, Pl aintiff deni ed the requests for admission 19 1 concerni ng bodily co ntact by the “uninvolved offi cers,” 2 after al l the officers involved had been de posed. 3 4 5 6 7 Compare Doc. 96 at 5 (indicating all office r depositions were com pleted by Au gust 8, 2008) wit h Doc. 96-2, Ex. 5 (Plainti ff’s October 17, 2008 responses to reques ts for admissio n). At that time, Plaintiff possessed no 8 evidence that any of the uninvolved officers touc hed her 9 person, or played a role in her physical ar rest, while 10 all of t he accused “ uninvolved” officers testifie d at 11 their de positions th at they had no physical conta ct with 12 13 14 15 16 Plaintif f during the arrest. In light of these f acts and Plaintif f’s clear an d repeated explanation in her interrog atory respon ses that she had no way of kn owing whether any particul ar officer had touched her be cause 17 she coul d not see “w hich officers did what,” Plai ntiff’s 18 denial o f the reques ts for admission concerning b odily 19 contact by the “unin volved officers” was unjustified. 20 21 22 23 24 The issu e of sanctio ns will be addressed after al l the challeng ed responses to requests for admission ar e examined . As for t he requests that Plaintiff admit that the 25 uninvolv ed officers were “not liable to [her] for the 26 incident giving rise to this litigation,” this seeks a 27 conclusi on of law an d Plaintiff responded. 28 20 Plain tiff 1 “had a r easonable gr ound to believe that [she] mi ght 2 prevail on the matte r.” 3 4 5 6 7 Fed. R. Civ. P. 37(c)(2) (C). She argu ed that the “uninvolved officers” could b e liable on a fai lure to inte rcede theory. Although her a rgument was ulti mately rejec ted, it was not entirely base less. Her theo ry was that, accepting her facts, the oth er 8 officers on the scen e observing excessive force u sed on 9 her by C rawford and Griepp, should ha ve acted to prote ct 10 her from injury by s topping their actions that in jured 11 her. 12 13 14 15 16 17 18 19 20 Sa nctions are not warranted in connection w ith this request for admissio n. A simila r result is justified for Plaintiff’s den ial of reque sts for admi ssion as to the reasonableness of force us ed and Defen dants Crawford and Griepp: REQUEST FOR ADMISSIO NS NO. 8: Admit th at the force used by Defendant officers in arres ting you was reasonable. RESPONSE TO REQUEST FOR ADMISSIONS NO. 8: Deny. 21 Doc 96-2 , Ex. 6 (Pla intiff’s Response to De fendant Cit y 22 of Modes to’s Request for Admissions). 23 to admit the conclus ion of law that the two offic ers were 24 not liab le: 25 26 27 28 She was al so asked REQUEST FOR ADMISSIO N NO. 5: Admit th at Officer C rawford is not liable to you for the incident giv ing rise to this litigation. 21 1 RESPONSE TO REQUEST FOR ADMISSIONS NO. 5: Deny. 2 3 4 5 Doc 96-2 , Ex. 7 (Pla intiff’s Responses to Defenda nts Crawford ’s and Griep p’s Requests for Admissions). Plaintif f “had a rea sonable ground to believe tha t 6 [she] mi ght prevail on the matter.” 7 37(c)(2) (C). 8 9 10 11 Fed. R. Civ. P. She ga ve a different description of her conduct and the exce ssive and violent nature of f orce used aga inst her. disputed . T hese facts were categorically Liability issues turned on resolution of the 12 two conf licting versions of the encounter. 13 force cl aim survived summary judgment, because ot her 14 witnesse s in part co rroborated her description as facts 15 and infe rences had t o be interpreted in favor of 16 17 18 19 20 Plaintif f. The excessive The jury did not accept Plaintiff’s v ersion and ulti mately found for defendants. Plaintif f’s only bas is to deny the uninvolved officers ’ requests t hat she admit that they did n ot have 21 any phys ical contact with her was based on her in ability 22 to ident ify the numb er and identity of officers w ith whom 23 she inte racted. 24 discover y. How ever, this is the purpo se of All othe r challenged denials were jus tified. 25 26 2. 27 Defendan ts are entit led to an award of “reasonabl e 28 Rule 37 Sanctions Are Not A ppropriate. expenses ” incurred t o prove that Officer Pimental ’s, 22 1 Oaxaca’s , and Scopes i’s physical contact with Pla intiff 2 was none xistent to m inimal. 3 4 5 6 7 Depositions had alre ady been taken pr ior to Plain tiff’s response to the reques ts for admissio n. No depos ition costs are recoverable. In cases of this nat ure, defense counsel was required to spend time review ing the depositions of all wi tnesses 8 to deter mine the ext ent of any physical contact b etween 9 Plaintif f and Office rs Pimental, Oaxaca, or Scope si. 10 Here, ho wever, no ev idence, e.g., relevant passag es from 11 the offi cer’s deposition testimony de monstr ating that 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they nev er came into contact with Plaintiff, was presente d to the cou rt as part of a motion for su mmary judgment and associa ted statements of fact. Plai ntiff had no e vidence of a ny kind as to these three off icers, except t hat they wer e on the scene. Defendan ts’ motion f or summary judgment included two paragrap hs on the su bject of the uninvolved offic ers: Plaintif f bears the burden of stating sufficient facts to support a c laim against every named Defendan t. To the ex tent a Plaintiff fails to meet thi s burden, he r claims may be challenged by a Mot ion for Summ ary Judgment, which may be granted if the plead er is unable to produce facts su pporting the claims plead. (De La Cruz v. Torme y, 582 F.2d 45, 64 (9th Cir. 1978).) The basic pl eading stand ard for civil rights complain ts calls for inclusion of clear, factual allegati ons in suppo rt of each cause of action, and that such allega tions are not vague or based on mere conclusions. (Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 19 82); Sherman v. Ya kahi, 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 549 F.2d 1287, 1290 (9th Cir. 1977).) Claims may be dismi ssed because they fail to allege sufficie nt facts to support any cognizable legal claim. ( Smilecare De ntal Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th C ir. 1996).) The basic pl eading standard for civil rights c omplaints ca lls for inclusion of clear, factual allegations in support of each cause of action, and that suc h allegations are not vague or based on mere con clusions. (Ivey, 673 F.2d at 266; She rman, 549 F. 2d at 129 0.) Here, it is importan t to note what the factual allegati ons in the C omplaint do not say. The allegati ons do not d escribe with particularity the "wro ngdoing" by any of the five officers. The Comp laint merely alleges that the five officers were present during the melee in w hich she was arrested. Fu rther, [Plaintiff’s] own allegati ons confirm that only two officers (Officer s Crawford a nd Griepp) were involved in [Plainti ff’s] arrest . (Plaintiffs Complaint at 7 10.) Thi s is further confirmed by [Pl aintiff’s] own test imony and re sponses to written discovery wherein she confirms to have no facts or knowledg e pertaining to any improper allegations by any o f the five u ninvolved officers. [Plainti ff’s] failur e to allege any facts to support her claims as against the uninvolved five off icers (Offic ers Angarole, Musto, Pimental , Scopesi or Oaxaca) require Summary Judgment to be grant ed on each of their behalf. Doc. 30- 2, at 9-10. The port ion of Defen dant’s separate statement dedicate d to this issue adds little: 23 24 25 26 27 28 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Doc 30-3 at 2. Def endants’ Response dedicated a larg e section to rebutting Plaintiff’s failure to inter cede theory, but containe d no new argument or facts co ncerning 15 the simp le factual i ssue of whether Officers Pime ntal, 16 Scopesi, and/o r Oaxaca ever touched Plaintiff. 17 18 19 20 21 22 23 Doc. 34. Instead, the court h ad to expend considerable judicial resources r eviewing the record for relev ant evidence . The resul t of this effort, which is su mmarized and anal yzed in the March 30, 2009 De cision , demonstra ted that the undisputed evidence supported the conclu sion that Off icers Piment al, Scopesi, and/or Oaxaca ne ver came 24 into phy sical contac t with Plaintiff. 25 Defendan ts provided essentially no record evidenc e 26 relevant to this inq uiry and gave the court no assista nce 27 in their papers, it is reasonable to conclude that they 28 25 Given that 1 expended no resource s “proving” the lack of physi cal 2 contact between Plai ntiff and Pimental, Scopesi, and/or 3 4 Oaxaca; rather, the Court did this wo rk and analysis. Defendan ts’ request for R ule 37(c) sanction s is DENIED. 5 6 B. Rule 11 Sanctions. 7 Alternat ively, the u ninvolved officers move to 8 recover their defens e costs as sanctions under Fe deral 9 10 11 12 13 Rule of Civil Proced ure 11, on the ground that Pl aintiff continue d to prosecu te her case against the m desp ite clear ev idence confi rming the five officers were “uninvol ved” in her arrest and inferentially pres ented a 14 “pleadin g, motion, o r other paper that was not su pported 15 by evide nce.” 16 same rea son that Plaintif f was entitled to deny t he 17 uninvolv ed officers’ requests for admission regar ding 18 19 20 21 liabilit y. Id. at 11- 13. This motion fails f or the Plaintif f argued that the “uninvolved officers ” could be l iable on a failure to interce de theory. Although he r argument was ultimately rej ected by 22 the jury , it w as not base less. Sanctions a re not 23 warrante d in connect ion with her continued prosec ution of 24 claims a gainst these officers. 25 26 27 28 C. Californ ia Code of C ivil Procedure § 1038. Finally, Defendants rely on California Code of Ci vil Procedur e (“CCCP”) § 1038, which auth orizes a court to 26 1 order re imbursement of attorney’s fees incurred d efending 2 against any claim br ought under the California To rt 3 4 5 6 7 Claims A ct (“CTCA”) upon a finding that the claim s were not brou ght in good faith and with reasonable cau se. Defendan ts ass ert that Plaintiff brought her acti on against the five “un involved” officers without re asonable 8 cause, a nd maintaine d claims against them despite the 9 fact tha t discovery “confirmed that only two of t he seven 10 officers ever touche d her or were in any way involved in 11 her arre st.” 12 13 14 15 16 Doc. 9 6 at 14. Any reco very of fees under CCCP § 1038 is expressly limited to expenses incurred defending against th e state law clai ms brought u nder the CTCA. See CCCP § 1038 (allowin g award of a ttorney’s fees “[i]n an y civi l 17 proceedi ng under the [CTCA]....”). 18 motion f or fees brou ght under CCCP § 1038 a trial court 19 must fin d that a “pl aintiff brought the action wi th a 20 21 22 23 24 Before denying a good fai th belief in the action’s justifiability and with objectiv e reasonable cause.” Kobzoff v. Los Angeles County H arbor/UCLA M edical Center, 19 Cal. 4th 851, 86 2 (1998). The good fa ith and reasonable cause requ irements 25 pertain not only to the action’s initiation but a lso its 26 continue d maintenanc e. 27 172 Cal. App. 3d 124 3, 1252 (1985). 28 Curti s v. County of Los Angele s, 27 1 2 3 4 5 6 7 Here, ju st as it was reasonable for Plaintiff to maintain her § 1983 excessive force claims agains t Officers Crawford an d Griepp, so too it was objec tively reasonab le for her t o maintain the assault and ba ttery claims a gainst them. The relevant facts we re disputed. The requ ired bad fai th cannot be established. Even if, arguendo, t he assault and ba ttery claims 8 9 against Pimental, Sc opesi, and/or Oax aca are viewed 10 differen tly, o nce all witnesses and parties had been 11 deposed, Plain tiff should have known that there was no 12 13 14 15 16 evidence to support a finding that any of the thr ee officers touched her or threatened to touch her i n any way. Pl aintiff did not argue that Pimental, Scop esi, and/or O axaca could be liable for assault and/or batte ry 17 on some alternative theory not requiring physical contact 18 or threa tened physic al contact. 19 cannot j ustify maint enance of the assault and bat tery 20 21 22 23 24 Accordingly, Pla intiff claims a gainst Pimen tal, Scopesi, and Oaxaca from the close of depositions in August 2008 to the issuan ce of the summ ary judgment decision on March 30, 2009. However, Defendants spent almost no time on this 25 aspect o f the Summar y Judgment motion and they ha ve not 26 reasonab ly apportion ed the time spent. 27 DENIED. 28 28 The motio n is 1 2 3 4 5 6 There is also the ma tter of the false arres t claim against all defendan ts that was voluntarily dismi ssed shortly before trial . Plaintif f’s version was believed -- there was no reaso n for arre st. 7 8 9 10 11 12 13 14 If for ce used was excessiv e in The mot ion is DENIED. IV. CONCLUSION For the reason s set forth above, Defendants’ motion for atto rney’s fees and/or sanctions is DENIED in its entirety . SO ORDER ED Dated: J anuary 6, 20 10 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29
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