Morales et al v. City of Delano et al, No. 1:2010cv01203 - Document 94 (E.D. Cal. 2012)

Court Description: Memorandum Opinion and ORDER GRANTING in Part and DENYING in Part the Parties' Cross Motions for Summary Judgment or Summary Adjudication signed by Chief Judge Anthony W. Ishii on 2/14/2012. (Figueroa, O)
Download PDF
Morales et al v. City of Delano et al Doc. 94 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 MANUELA CANCINO CONTRERAS MORALES and R.A.M., a minor, ) ) ) Plaintiff, ) ) v. ) ) CITY OF DELANO; MARK P. ) DEROSIA; JOSE MEJIA; SHAUN ) MANUELE; and DOES 1 through 50, ) inclusive, ) ) Defendants. ) ____________________________________) 1:10-CV-1203 AWI JLT MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES’ CROSSMOTIONS FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION Doc. No’s. 42 and 46 16 17 This is an action for damages arising out of the death of Ruben Mesa Morales 18 (“Decedent”) as a result of a gunshot wound inflicted by Jose Mejia (“Mejia”), a reserve 19 officer of the City of Delano Police Department, acting in the course and scope of his 20 employment. The action is brought by Manuela Cancino Contreras Morales individually and 21 as successor in interest of Decedent and by R.A.M., a minor child of Decedent by and through 22 his Guardian ad Litem, Manuela Morales (collectively, “Plaintiffs”). In the currently- 23 operative Second Amended Complaint (“SAC”), Plaintiffs allege a total of seven claims for 24 relief against defendants City of Delano, Mark P. Derosia (“Derosa”), Delano Chief of Police, 25 Mejia and Shaun Manuele (“Manuele”), a City of Delano police officer. Defendants Derosa, 26 Meja and Manuele (the “individual Defendants”) are each sued in both their individual and 27 official capacities. Currently before the court is Plaintiffs’ motion for partial summary 28 judgment on a portion of their first claim for relief. Document # 46. Also currently before the 1 court is Defendants’ motion for summary judgment as all claims against all Defendants. 2 Document # 42. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is 3 proper in this court. 4 5 FACTUAL BACKGROUND Although most of the facts alleged in the parties’ cross-motions for summary judgment 6 are sharply disputed, a short list of stipulated facts has been submitted from which a general 7 picture of the events giving rise to this action can be drawn. Decedent married Plaintiff 8 Morales in Zacatecas, Mexico in 2000. They had one child together, R.A.M., who was born in 9 the United States in Georgia. Decedent is a veteran of the United States military and lived in a 10 converted garage apartment (hereinafter, the “apartment”) that was attached to a house owned 11 by Maria and Gabriel Nunez in Delano, California. Except for the birth of R.A.M. in Georgia, 12 Plaintiffs have continuously resided in Zacates, Mexico. Decedent was paying a monthly rent 13 of $500.00 per month to Maria and Gabriel Nunez at the time of his death. 14 Shortly after midnight on July 7, 2009, Mrs. Nunez returned home with her three 15 children and noted that the front door was open and lights were flickering inside her home. 16 After calling her husband at work, she called 9-1-1. Police officers arrived shortly thereafter. 17 Mrs. Nunez was approached by Officer Felix, a non-party to this action, as Mrs. Nunez stood 18 on the sidewalk in front of the residence. Mrs. Nunez, who spoke only Spanish, told Officer 19 Felix that she rented a portion of her home to a person. Officer Felix was not certified as 20 Spanish speaking by the Delano Police Department. Although there is some dispute over the 21 details, it is generally not disputed that officers Mejia and Manuele were deployed to the back 22 yard of the residence after which other officers entered the house by the front entrance. While 23 the parties do not disputed that one of the responding non-party officers, Officer Felix, was 24 told there was a renter who lived on the property in the apartment, it is sharply disputed 25 whether Mejia or Manuele knew, or should have known, of the presence of Decedent in the 26 apartment. 27 28 2 1 Although it is not entirely clear to the court whether the apartment can be accessed 2 from the front of the house, there is no dispute that the apartment cannot be accessed from the 3 inside of the main part of the house. It is not disputed that Mejia and Manuele entered through 4 an unlocked doorway in the backyard leading into Decedent’s apartment. It is not disputed 5 that Mejia fired a single shot from his service pistol that struck Decedent and that the gunshot 6 would ultimately resulted in Decedent’s death. It is not disputed that Decedent was unarmed 7 at the time of his shooting. 8 PROCEDURAL HISTORY 9 The original complaint in this action was filed on June 30, 2010. The currently 10 operative SAC was filed on August 6, 2010. Plaintiffs’ SAC alleges a total of seven claims 11 for relief; four claims are alleged pursuant to 42 U.S.C. § 1983 and the remaining three are 12 alleged pursuant to California common law for wrongful death, battery and negligence, 13 respectively. Although Plaintiffs’ first claim for relief is set forth as a single claim against 14 officers Mejia and Manuele, it actually alleges violation of Decedent’s rights under the Fourth 15 and Fourteenth Amendments on four separate legal theories; unlawful warantless search, 16 unlawful use of force, unlawful denial of Decedent to access to medical care necessitated by 17 Defendants’ actions, and falsification of evidence in furtherance of a conspiracy to deprive 18 Decedent to access to courts. Plaintiffs’ second claim for relief alleges the violation of 19 Plaintiffs’ Fourteenth Amendment right to the companionship and support of Decedent. 20 Plaintiffs’ first and second claims for relief are alleged against Mejia and Manuele. 21 Plaintiffs’ third claim for relief is alleged against City of Delano pursuant to Monell v. 22 Dep’t of Soc. Services, 436 U.S. 658, 694 (1978). Plaintiffs’ fourth claim for relief is alleged 23 against Police Chief DeRosa in his individual capacity and the City of Delano for supervisory 24 liability pursuant to 42 U.S.C. § 1983. Plaintiffs’ fifth claim for relief for wrongful death 25 under California common law is alleged against all defendants; the sixth claim for relief 26 alleges common law battery against Mejia only, and the seventh claim for relief alleges 27 28 3 1 2 negligence against Mejia and Manuele. The parties’ cross-motions for summary judgment or summary adjudication were filed 3 on September 23, 2011. Each party filed an opposition to the motion of the other party on 4 October 24, 2011. The parties filed their respective replies on October 31, 2011. The hearing 5 on the cross motions was vacated and the matter was taken under submission as of November 6 7, 2011. 7 8 LEGAL STANDARD Summary judgment is appropriate when it is demonstrated that there exists no genuine 9 issue as to any material fact, and that the moving party is entitled to judgment as a matter of 10 law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Poller v. 11 Columbia Broadcast System, 368 U.S. 464, 467 (1962); Jung v. FMC Corp., 755 F.2d 708, 12 710 (9th Cir. 1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 13 (9th Cir. 1984). 14 Under summary judgment practice, the moving party always bears the initial responsibility of informin and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 15 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although the party moving for summary 17 judgment always has the initial responsibility of informing the court, the nature of the 18 responsibility varies “depending on whether the legal issues are ones on which the movant or 19 the non-movant would bear the burden of proof at trial.” Cecala v. Newman, 532 F.Supp.2d 20 1118, 1132-1133 (D. Ariz. 2007). When the moving party has the burden of proof at trial, that 21 party must carry its initial burden at summary judgment by presenting evidence affirmatively 22 showing, for all essential elements of its case, that no reasonable jury could find for the 23 non-moving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th 24 Cir.1991) (en banc); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); see also 25 E.E.O.C. v. Union Independiente De La Autoridad De Acueductos Y Alcantarillados De 26 Puerto Rico, 279 F.3d 49, 55 (1st Cir. 2002) (stating that if “party moving for summary 27 28 4 1 judgment bears the burden of proof on an issue, he cannot prevail unless the evidence that he 2 provides on that issue is conclusive.”) 3 If the moving party meets its initial responsibility, the burden then shifts to the 4 opposing party to establish that a genuine issue as to any material fact actually does exist. 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); First Nat'l Bank 6 of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los Angeles, 7 607 F.2d 1276, 1280 (9th Cir. 1979). In attempting to establish the existence of this factual 8 dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, 9 but is required to tender evidence of specific facts in the form of affidavits, and/or admissible 10 discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 11 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 12 (9th Cir. 1973). The opposing party must demonstrate that the fact in contention is material, 13 i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. 15 Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the 16 evidence is such that a reasonable jury could return a verdict for the nonmoving party, 17 Anderson, 477 U.S. 248-49; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 18 1987). 19 In the endeavor to establish the existence of a factual dispute, the opposing party need 20 not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed 21 factual dispute be shown to require a jury or judge to resolve the parties' differing versions of 22 the truth at trial.” First Nat'l Bank, 391 U.S. at 290; T.W. Elec. Serv., 809 F.2d at 631. Thus, 23 the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order 24 to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. 25 Civ. P. 56(e) advisory committee's note on 1963 amendments); International Union of 26 Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985). 27 28 5 1 In resolving the summary judgment motion, the court examines the pleadings, 2 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 3 any. Rule 56(c); Poller, 368 U.S. at 468; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 4 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 5 255, and all reasonable inferences that may be drawn from the facts placed before the court 6 must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United 7 States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam); Abramson v. University of 8 Hawaii, 594 F.2d 202, 208 (9th Cir. 1979). Nevertheless, inferences are not drawn out of the 9 air, and it is the opposing party's obligation to produce a factual predicate from which the 10 inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. 11 Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). 12 MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S 13 MOTION FOR SUMMARY ADJUDICATION 14 Plaintiffs seek summary adjudication only as to the portion of their first claim for relief 15 that alleges the warrantless, no-knock entry into Decedent’s apartment was in violation of his 16 rights under the Fourth Amendment. 17 A. Factual Issues 18 In making the determination of Plaintiffs’ entitlement to summary judgment on this 19 issue, the first issue presented by Defendants’ opposition is how the court is to address the 20 factual context of Plaintiffs’ claim. Defendants’ primary contention is that the actions of 21 Mejia and Manuele were objectively reasonable in light of the facts known to them. 22 Prominent among Defendants’ objections to Plaintiffs’ proffer of undisputed material facts is 23 their objection under Graham v. Connor, 490 U.S. 386 (1989) to any fact that was not known 24 to either Mejia or Manuele at the time of the entry into Decedent’s apartment. 25 26 The Supreme Court’s decision in Graham establishes three general rules of Fourth Amendment jurisprudence. First, Graham establishes that Fourth Amendment claims, 27 28 6 1 whether based on unlawful search or unlawfull application of force, are determined under the 2 standard of objective reasonableness, not under the Fourteenth Amendment substantive due 3 process standard. Id. at 394-395. Second, Graham establishes that the determination of 4 reasonableness is to be “judged from the perspective of a reasonable officer on the scene, 5 rather than with the 20/20 vision of hindsight. Id. at 396. Third, Graham, establishes that the 6 reasonableness inquiry is objective, that is, without reference to the officer’s underlying intent 7 and motivations. Id. at 397. 8 9 Plaintiffs’ undisputed material facts are contested in almost every particular. In a disputed summary judgment motion under Fed.R.Civ.P. 56, the trial court is obligated to draw 10 all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in 11 favor of the non-moving party. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1138 (9th 12 Cir. 2004). 13 Unfortunately it is frequently the case, and is so here, that where parties seek to “cover 14 all the bases” factually, the facts the court finds critical to its decision suffer from 15 underdevelopment. With regard to Plaintiff’s proffer of undisputed material facts, the court 16 agrees with Defendants that the majority of these are irrelevant. With regard to Defendants, so 17 much effort has gone into establishing what officers Mejia and Manuele did not know that the 18 court is left with the conclusion that these officers were dispatched to “cover the back” in a 19 state of near-perfect ignorance. The court notes that certain aspects of Defendants’ version of 20 the facts are sharply disputed; principal among these is Defendants’ allegation that Mejia and 21 Manuele had neither actual or constructive knowledge of Decedent’s presence in the 22 apartment or of his status as a renter. Were the court considering here Defendants’ motion for 23 summary adjudication of this issue, that factual dispute alone would be sufficient to defeat 24 Defendants’ motion. However, Plaintiffs’ motion is currently under consideration and the 25 court must accept Defendants’ version of the facts to the extent the facts are disputed. 26 Accepting Defendants’ representation of the facts as true, officers Mejia and Manuele 27 28 7 1 arrived at the scene at about the same time as the other officers and were told to “cover the 2 back” knowing only that there had been a call reporting that the front door was found to be 3 ajar/open when it should not have been, and that there was a light on inside when there should 4 not have been. Nothing else. Officers Mejia and Manuele had no knowledge of whether 5 anyone had tried to make contact with anyone inside the apartment or Mrs. Nunez’s 6 (hereinafter, the “residence”) and did not attempt to do so themselves. See Plaintiff’s UMF # 7 46 (none of the responding officers knocked on the apartment front door or windows). As 8 noted above, Mejia and Manuele had no knowledge of any conversation between Mrs. Nunez 9 and the other officers or of the search of the Nunez residence or of the status of the other 10 officers following their search. By combining together Plaintiff’s UMF’s numbered 46 (no 11 attempt to call out to anyone on the inside or announce police presence) and 51 (no knock 12 upon entry by Mejia and Manuel) the court concludes that Mejia and Manuele entered the 13 space rented by Decedent through an unlocked door without knocking or announcing. 14 The court notes that Defendants invite the court to speculate that Mejia and Manuele 15 were caught up in rapidly evolving facts requiring split-second decision making. There are 16 absolutely no facts to indicate this was the case. At most, the facts permit the conclusion that 17 Mejia and Manuele were deployed to “cover the back,” which they did, and where nothing 18 much appears to have happened. There were no fleeing suspects, no shots fired, no voices 19 indicating urgency, and no radio transmissions indicating an escalating situation. Neither 20 party has developed the facts surrounding the entry with a great deal of precision so the court 21 is left with the understanding that Mejia and Manuele “covered the back” for some period of 22 time not knowing what the other officers were doing. At some point, and for no stated reason, 23 Mejia and Manuele decided to enter an open door without knocking or announcing and 24 without any knowledge where the door would lead. 25 26 Defendants allege, and the court accepts as true for purposes of this discussion, that Mejia and Manuele did not know if, or when, the other officer commenced a search of the 27 28 8 1 residence from the front; did not know that the search of the residence concluded without 2 finding anything amiss; and did not know that Mrs. Nunez had communicated to officers Felix 3 and Ward that the area comprising the garage had been converted into an apartment and was 4 occupied by Decedent. The court also accepts as true that sometime after the radio broadcast 5 of the “code 4" message, Mejia and Manuele entered without knocking or announcing through 6 a partially-opened door in the back yard that they did not know entered into the space that was 7 being rented by Decedent. There is, of course, no dispute that Mejia and Manuele entered 8 without a warrant. 9 10 The question posed by Plaintiffs’ motion for summary adjudication is whether the warrantless, no-knock entry by Mejia and Manuele was lawful. 11 B. Fourth Amendment Violation 12 “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980) (footnote omitted). The presumption of unconstitutionality that accompanies “the [warrantless] entry into a home to conduct a search or make an arrest” may be overcome only by showing “consent or exigent circumstances.” Steagald v. United States, 451 U.S. 204, 211 (1981). 13 14 15 16 Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008). To these two 17 fundamental exceptions to the general warrant requirement, Defendants add the “emergency 18 exception.” Defendants claim all three apply with respect to the entry by Mejia and Manuele. 19 20 1. Emergency Exception As Defendants correctly point out, the emergency exception derives from the care- 21 taking function and requires that there be reasonable grounds to believe there was an 22 emergency that required immediate assistance to preserve life or property. See Defendants’ 23 Opposition, Doc. # 52 at 17:1-8 (citing Espinosa v. City & County of San Francisco, 598 F.3d 24 528, 534 (9th Cir. 2010); Hopkins v. Bonvicino, 573 F.#d 752, 763-764 (9th Cir. 2005)). The 25 factual allegations presented in this case give no hint of the existence of a situation that would 26 invoke the care-taking function of the police. The only information available to the officers 27 28 9 1 was that there was a house with the front door open and a light on where there should have 2 been no one home. No reasonable officer could make a determination that an emergency 3 existed from those facts. The court finds Defendants’ version of the facts does not support the 4 proposition that the entry was justified on the basis of an emergency. 5 6 2. Exigent Circumstances Next, Defendants contend that the entry by Mejia and Manuele into the space rented by 7 Decedent was justified by exigent circumstances. “There are exigent circumstances to justify 8 a warrantless entry by police officers into a home if the officers have a reasonable belief that 9 their entry is ‘necessary to prevent physical harm to the officers or other persons, the 10 destruction of relevant evidence, the escape of the suspect, or some other consequence 11 improperly frustrating legitimate law enforcement efforts.’ [Citation.]” Huff v. City of 12 Burbank, 632 F.3d 539, 544-545 (9th Cir. 2011) (quoting Fisher v. City of San Jose, 558 F.3d 13 1069, 1075 (9th Cir. 2009)). Reliance on the exigent circumstances exception requires that 14 governmental defendants offer facts to prove: (1) that the officer had probable cause to search 15 the house; and (2) that “exigent circumstances justified the warrantless intrusion.” United 16 States v. Johnson, 256 F.3d 895, 205 (9th Cir. 2009). The parties do not seem to dispute that 17 Mrs. Nunez’s 9-1-1 call was sufficient to establish probable cause for entry into the residence. 18 There remains, then, the issue of whether there existed an exigent circumstance with regard to 19 the entry of Mejia and Manuele into the apartment. 20 To make the case that exigent circumstances existed with regard to the warrantless, no- 21 knock entry by Mejia and Manuele, Defendants rely principally on Murdock v. Stout, 54 F.3d 22 1437 (9th Cir. 1995). In Murdock, the initial evidence that police encountered that indicated 23 exigent circumstances consisted of a neighbor’s report of suspicious activity and the 24 observation of an open door at the rear of the house. The Murdock court noted that, had the 25 responding officers known only those facts, in the absence of any other physical evidence of 26 burglary, there would have been little doubt that exigency would not have been demonstrated. 27 28 10 1 Id. at 1441-1442. However, the Murdock court noted that facts subsequently determined by 2 the police officers, facts not in evidence here, tipped the scales in the officers’ favor. 3 Specifically, the Murdock court noted that the officers observed that lights and a television 4 were on and then “prudently attempted to make contact with the resident,” including shouting 5 twice into the home and calling the telephone number for the house. Id. at 1442. Defendants’ 6 reliance on Murdock is unavailing specifically for the reason that there is no evidence that 7 Mejia or Manuele had any additional information to tip the scales in favor of determining 8 there was an exigent circumstance. So far as the court can determine from Defendants’ 9 version of the facts, Mejia and Manuele deployed to the back yard knowing only that the 10 homeowner had observed a door ajar and lights on. The officers made no attempt to make 11 contact with anyone on the inside and had no knowledge whether any other officers had done 12 so. 13 In addition, and probably most critically, the Murdock court held that, where entry 14 could be accomplished with no damage to property, “only mild exigency need be shown.” Id. 15 This proposition was rejected in LaLonde v. County of Riverside, 204 F.3d 947, 956 - 957 16 (9th Cir. 2000). Thus, to the extent there is any suggestion derived from Murdock that Mejia 17 and Manuele could perform a warrantless, no-knock entry into the apartment on a theory of 18 exigent circumstances because the door was not locked, that suggestion is rejected. What 19 Murdock makes clear to this court is that what distinguishes an exigent circumstance from one 20 that is not exigent is some fact or facts in addition to the observation that the door is open and 21 the lights are on when they should not be. The absence of any other physical evidence of 22 exigency, coupled with the lack of any effort by the officers, including Mejia and Manuele, to 23 announce themselves or to make any effort to establish that no one was lawfully present 24 convinces the court that the facts of this case, as presented by the parties and construed in a 25 light most favorable to Defendants, lies firmly outside the realm of circumstances that are 26 known and accepted to constitute exigent circumstances. 27 28 11 1 2 3. Consent Consent is a closer call but is nonetheless problematic for Defendants. Neither party 3 alleges that Mrs. Nunez gave actual consent for a search to any officers and, in any event, it is 4 factually established that neither Mejia or Manuele spoke to Mrs. Nunez, so neither of them 5 could have reasonably believed they had been given express permission to enter or search. 6 Likewise, since neither Mejia or Manuele knew that a search was being or had been conducted 7 by the other officers, they had no reason to believe that express permission to conduct a search 8 had been given at a later time by Mrs. Mejia. The only remaining possibility is that the 9 officers had implied consent to search. It is here that the lack of development of relevant 10 facts and focused legal argument mentioned previously by the court comes into play. 11 For reasons not apparent to the court, the parties seem to have skipped over the crucial 12 question of whether permission to search is necessarily implied by a 9-1-1 call and, if so, who 13 may claim the implied consent and for what scope of search. No party has cited, nor has the 14 court been able to find case authority for the proposition that consent to search may be implied 15 from a 9-1-1 call or, if so, what scope of search is implied and what information must be made 16 available by the reporting party to confer implied consent. Given the fact that Mrs. Nunez was 17 at the scene, that communications with her had been established prior to any entry of the 18 residence by any officers, and that the officers were presumably in radio contact with each 19 other, the court can see absolutely no reason why it should be required to presume implied 20 consent to search as to Manuele or Mejia. A valid source of express consent was at hand and 21 the court presumes that reasonable officers on the scene would have availed themselves of the 22 readily-available express consent. 23 The parties’ extensive argument regarding whether or not Mrs. Nunez had actual or 24 apparent authority to consent to the search of the apartment misses the crucial question of 25 whether she gave consent at all, or in the alternative, whether there was a legal basis for Mejia 26 and Manuele to presume consent as to their entry. To the extent that consent may be implied 27 28 12 1 by, or was expressed when the officers entered the front of the residence at the direction or 2 request of Mrs. Nunez, that fact was not known to the officers in the back yard and could not 3 have been reasonably surmised by them given their asserted extensive ignorance of what was 4 going on during the search. 5 Defendants’ arguments to the contrary appear to be predicated on two lines of 6 argument the court finds unpersuasive. The first is that Defendants Mejia and Manuele 7 reasonably believed they were in a rapidly-evolving situation involving a burglary suspect and 8 split-second decision making. The court finds that what Manuele and Mejia were confronted 9 with is an open door and a light left on inside of the residence. The rest is surmise that fails to 10 establish exigency. See LaLonde, 204 F.3d at 957 (burden to show evidence of exigent 11 circumstance not satisfied by speculation on what the conditions might have been). 12 Second, Defendants argue that the reasonability of Defendants’ actions must be judged 13 based on what they were actually, subjectively aware of. As previously discussed, this is not 14 the case. Defendants’ actions are judged under the totality of the circumstances that a 15 reasonable police officer would have known at the time under the existing circumstances. An 16 officer may not take refuge in ignorance of facts that a reasonable officer would have known 17 or felt compelled to find out. The court has considerable difficulty with the proposition that a 18 reasonable officer, having as little actual knowledge of the situation as was apparently the case 19 here, would have felt justified in making a no-knock entrance without bothering to 20 communicate with others to obtain more information. It makes no difference that the officers 21 subjectively believed that the door they were entering was part of Nunez’s residence. Given 22 that the Mejia and Manuele did not know if Nunez had given consent to search, did not know 23 whether the officers had entered the residence or that they were going to do so, and did not 24 know whether anyone had attempted to determine whether there was an innocent person inside 25 of the residence or apartment, Mejia and Manuele had no objectively reasonable basis to 26 presume consent to make the no-knock entry into the apartment. 27 28 13 1 It bears emphasizing what the court considers critical to its determination of the 2 question of whether Decedent’s Fourth Amendment Rights were infringed by the entry of 3 Decedent’s apartment by Mejia and Manuele. The crucial facts are: (1) Mejia and Manuele 4 were deployed to “cover the back” and did so having no knowledge of the status of the other 5 officers actions or of any other facts other than the front door being ajar and one or more 6 interior lights being on in the residence; (2) during what the court presumes to be a not- 7 negligible length of time, nothing happened that would have indicated to Mejia and Manuele 8 any change in circumstance; (3) Mejia and Manuele undertook the entry without first 9 obtaining any more than the very minimum information they had when they were deployed to 10 the back yard; and (4) the entry was, for no apparent reason, undertaken without knocking or 11 announcing. The court is mindful that, in taking all the disputed facts in the light most 12 favorable to Defendants, it has been required to make some assumptions as to the totality of 13 the facts that Mejia and Manuele encountered. 14 C. Qualified Immunity 15 Defendants contend that, even if Decedent’s Fourth Amendment rights were violated 16 with regard to warantless, no-knock entry of his apartment by Mejia and Manuele, those 17 Defendants are nonetheless shielded from liability by qualified immunity. “Qualified 18 immunity can shield government officials from individual civil liability where their conduct 19 ‘does not violate clearly established statutory or constitutional rights of which a reasonable 20 person would have known.’ [Citation.]” Huff v. City of Burbank, 632 F.3d 539, 547-548 (9th 21 Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “We use a two-step 22 analysis to determine whether the facts show that: (1) the conduct of the officers violated a 23 constitutional right; and (2) the right that was violated was clearly established at the time of 24 the violation.” Huff, 632 F.3d at 548. “While the constitutional violation prong concerns the 25 reasonableness of the officers mistake of fact, the clearly established prong concerns the 26 reasonableness of the officer’s mistake of law.” Torres v. City of Madera, 648 F.3d 1119, 27 28 14 1 2 3 4 5 1127 (9th Cir. 2011) (italics in original). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is an immunity from suit rather than a mere defense to liability. Id. Accordingly, courts have repeatedly stressed “the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) ( per curiam ). Because qualified immunity is an affirmative defense, the burden of proof initially lies with the official asserting the defense. Harlow, 457 U.S. at 812. 6 Padilla v. Yoo, 633 F.Supp.2d 1005, 1031 (N.D. Cal. 2009). 7 The court begins by noting that the procedural context of the question of qualified 8 immunity is presented somewhat non-typically here where the motion for summary 9 adjudication is by a plaintiff whose claim is against a defendant who asserts the defense of 10 qualified immunity. While an official sued in his individual capacity may prevail on a 11 defensive summary judgment motion by showing either the absence of a constitutional 12 violation or that the right in question was not clearly defined at the time of the violation; a 13 plaintiff seeking summary judgment on the same claim must prove both the constitutional 14 violation and that the right was clearly defined. See Mueller v. Auker, 576 F.3d 979, 989 (9th 15 Cir. 2009) (summary judgment in favor of plaintiff on substantive claim, coupled with denial 16 of qualified immunity defense, is equivalent to final judgment on the merits). 17 To recap the court’s findings with regard to Plaintiffs’ claim for Fourth Amendment 18 violation resulting from the entry by Mejia and Manuele, the court finds that the facts, as 19 viewed in the light most favorable to Defendants tend strongly to support Plaintiffs’ unlawful 20 entry claim. However, as noted above, both parties seem to have skipped over the factual and 21 legal element the court finds most crucial to the determination of Plaintiff’s claim; that is, 22 Defendants have not shown precisely how, or on what legal basis, Mejia and Manuele could 23 reasonably have believed they had consent to enter through the partially-opened door (whether 24 or not they subjectively believed it was part of the residence) without knocking or announcing. 25 Likewise, Plaintiffs have not been clear on whether any of the responding officers had actual 26 or implied consent and how that consent, if any, was communicated. The court again points 27 28 15 1 out that it has performed at least a cursory search for case authority for the proposition that a 2 9-1-1 call confers some form of consent to search with negative results. That, coupled with 3 the scarcity of facts pertaining to the issue of actual or implied consent leaves the court in a 4 position where it feels that further briefing is essential to complete the analysis of whether 5 Defendants Mejia and Manuele are entitled to the defense of qualified immunity. 6 The court finds that the rights of the parties should not be decided on the basis of the 7 court’s decision on a sub-issue that neither party has briefed sufficiently. Therefore, the 8 parties will be asked to submit further briefing on the issue of implied or actual consent for the 9 search and to make such additional factual allegations as may be relevant to the court’s 10 decision and admissible under summary judgment rules. The court will stay determination of 11 Plaintiff’s motion for partial adjudication until the additional briefing is complete. 12 13 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. Motion for Summary Judgment as to Defendant DeRosia as Proper Defendant 14 Defendants move for summary judgment as to all claims against Defendant DeRosia 15 on the ground DeRosia was not the cause of any constitutional harm Decedent may have 16 suffered. An examination of Plaintiffs’ SAC indicates DeRosia is sued in both his individual 17 and official capacities for inadequate training or supervision. The Ninth Circuit “has long 18 permitted plaintiffs to hold supervisors individually liable in § 1983 cases when culpable 19 action, or inaction, is directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 20 2011). 21 22 23 24 25 26 In Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), we explained that to be held liable the supervisor need not be directly and personally involved in the same way as are the individual officers who are on the scene inflicting constitutional injury.’ Id.. at 645. Rather, the supervisor’s participation could include his “own culpable action or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations, quotation marks, and alterations omitted). Starr, 652 F.3d at 1205-1206. 27 28 16 1 Defendants’ argument in favor of summary judgment recognizes that Plaintiff’s SAC 2 asserts the supervisor claim against DeRosia in both his individual and official capacities. 3 With regard to the suit against DeRosia in his individual capacity, Defendants argue only that 4 DeRosia was not present at the time Decedent was injured and so could not have acted under 5 color of law to cause any constitutional harm to Decedent. This assertion completely misses 6 the point of supervisory liability which places liability on supervisors in their individual 7 capacity where it can be shown that the supervisor’s action were a substantial cause of the 8 constitutional harm because the officials who actually performed the acts leading to the harm 9 were inadequately trained, supervised or disciplined. Personal participation in the acts that 10 directly lead to the constitutional harm are not a necessary element of supervisory liability. 11 The bulk of Defendants’ argument in favor of summary judgment as to DeRosia is 12 aimed at the proposition that a suit against an officer in his official capacity is the same as a 13 suit against the entity and therefore the supervisory officer in his official capacity is an 14 unnecessary party to the action. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985). 15 Plaintiffs doe not dispute Defendants’ contentions with regard to an action against a 16 supervisor in his official capacity. Rather, Plaintiffs point to evidence, primarily in the form 17 of expert opinion testimony, tending to show that both the training that Defendant Mejia 18 received prior to the shooting, and the review of cases of officer involved shootings, including 19 Mejia’s shooting in this case, are not adequately investigated and retraining or other corrective 20 action is not taken. See Declaration of Roger A. Clark, Document # 61 at ¶ 12 (listing 21 conclusions regarding insufficiency of police officer training and supervision and 22 insufficiency of investigation of OIS instances). 23 The court construes Plaintiffs’ Fourth Claim for Relief, as set forth in the SAC, as 24 alleging a claim against DeRosia in his individual capacity for deficient supervision and 25 training. The merits of Plaintiffs’ supervisory claim against DeRosia will be discussed below. 26 The court finds Defendants’ argument that DeRosia is not a proper defendant because he did 27 28 17 1 not personally participate in the conduct giving rise to Decedent’s harm to be without merit. 2 II. Motion for Summary Judgment as to Individual Defendants Manuele and Mejia 3 Plaintiff’s first claim for relief alleges violation of Decedent’s rights under the Fourth 4 Amendment. Four separate theories of violation are alleged in the single claim for relief. 5 They are; unlawful entry/search of the premises, unlawful application of force in performing a 6 seizure, unlawful delay in securing aid for injuries caused by the officers’ actions, and 7 conspiracy to deny access to the courts by way of cover-up. Each of these sub-claims are 8 alleged against both Mejia and Manuele. 9 A. Unlawful Entry - Manuele and Mejia 10 With regard to the allegation of an unlawful entry into the apartment by Decedent, 11 Defendants’ arguments for summary judgment are close to, or the same as, those made in 12 opposition to Plaintiffs’ motion for summary adjudication on the same issue. As is evident 13 from the discussion above relating to Plaintiffs’ motion for summary adjudication on the issue 14 of unlawful entry, the court concludes that Defendants have definitely not carried their burden 15 to show there remains no issue of material fact as to the entry of Mejia and Manuele into the 16 apartment rented by Decedent. There is no question that both officers entered. As discussed 17 above, Defendants have failed to show that there were exigent circumstances requiring the 18 entry of Mejia or Manuele through the unlocked door that was an entry way into the apartment 19 rented by Decedent. Even if it could be established that the 9-1-1 call Mrs. Nunez made was 20 sufficient to confer implied consent to search the residence, Defendants would still not be 21 entitled to summary judgment because the facts, now taken in the light most favorable to 22 Plaintiffs, establish that Mrs. Nunez informed all the police responders present that the 23 apartment had a renter. If a jury could find that Manuele and Mejia knew or reasonably 24 should have known that the apartment had a renter, they could not reasonably believe they had 25 permission to enter that space. The court therefore finds that summary judgment is not 26 appropriate as to the entry of both Manuele and Mejia into the apartment occupied by 27 28 18 1 Decedent. 2 B. Unlawful Use of Force 3 A seizure is a “governmental termination of freedom of movement through means 4 intentionally applied,” Jensen v. City of Oxnard, 145 F.3d 1078, 1083 (9th Cir.1998) (internal 5 quotation marks and citation omitted), and occurs “whenever [an officer] restrains the 6 individual's freedom to walk away.” Robins v. Harum, 773 F.2d 1004, 1009 (9th Cir.1985). 7 An intentional shooting by a police officer constitutes a seizure for purposes of the Fourth 8 Amendment. Jensen, 145 F.3d at 1078. “To determine if a Fourth Amendment violation has 9 occurred, we must balance the extent of the intrusion in the individual’s Fourth Amendment 10 rights against the government’s interests to determine whether the officer’s conduct was 11 objectively reasonable based on the totality of the circumstances. [Citation.]” Espinosa v. City 12 and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010) (citing Graham v. Connor, 13 490 U.S. 386, 396-397 (1989). “An objectively unreasonable use of force is constitutionally 14 excessive and violates the Fourth Amendment’s prohibition against unreasonable seizures.” 15 Torres v. City of Madera, 648 F.3d 1119, 1123-1124 (9th Cir. 2011). “Law enforcement 16 officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat 17 to the officer or others, or is fleeing and his escape will result in a serious threat of injury to 18 persons.” Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997). 19 A court analyzes the reasonableness of the force employed in police seizure according 20 to the factors set forth by the Supreme Court in Graham. The Graham, Court employed “a 21 non-exhaustive list of factors” which include “(1) the severity of the crime at issue; (2) 22 whether the suspect poses an immediate threat to the safety of the officers or others; and (3) 23 whether the suspect actively resists detention or attempts to escape.” Liston v. County of 24 Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at 388). The central 25 issue in an action for unlawful use of force is whether the victim of the force used presented 26 an immediate threat to the safety of the officers or bystanders. See Shannon v. City of Costa 27 28 19 1 Mesa, 46 F.3d 1145, 1995 WL 45723 (9th Cir. 1995) at *4 (the most important element in an 2 excessive force claim is whether the suspect poses an immediate threat to the safety of the 3 officers or others). 4 5 1. Mejia Putting aside the issue of whether Mejia and Manuele were legally within the 6 apartment space rented by Decedent, Defendants allege a set of facts that, if found true, would 7 tend to establish that as Mejia and Manuele advanced down the narrow hallway after entering 8 from the outside, they heard a sound they thought might be an intruder preparing to resist the 9 police presence. Shortly thereafter they encountered Decedent who was advancing rapidly and 10 menacingly and, while clad only in boxer shorts, was holding his hands in a way that made it 11 impossible for Mejia to tell if he was holding a dangerous weapon. As Decedent advanced, he 12 made a menacing noise and Mejia reasonably feared for his safety and fired his weapon only 13 when he was prevented from retreating further because Manuele was in the way. 14 Almost every one of Defendants’ proffered undisputed material facts that tend to 15 establish the foregoing narrative are sharply disputed by Plaintiffs. Plaintiffs submit 16 deposition testimony by Manuele that tends to contradict Defendants allegation that Decedent 17 was advancing quickly on Mejia, or that Manuele was standing behind, and therefore blocking 18 the retreat of, Mejia. Plaintiffs’ proffer of deposition testimony tends to show that Manuele, 19 who was standing next to Mejia, could tell that Decedent was unarmed and that his hands 20 were raised and that there was no reason for Mejia to have reasonably believed that he was in 21 imminent danger of death or injury. Since the court is considering Defendants’ motion, 22 Plaintiff’s version of the facts is accepted so long as there is some evidence that tends to 23 establish those facts. Here, the court concludes that Plaintiffs have made an adequate showing 24 that there remains an issue of material facts as to whether Mejia’s use of force was reasonable 25 under all the circumstances. Summary Judgment as to Mejia is therefore not warranted on the 26 excessive force claim. 27 28 20 1 2 2. Manuele Defendants contend that Manuele cannot be held liable as to Plaintiffs’ claim for 3 excessive use of force because Manuele’s conduct did not harm Decedent. Plaintiffs contend 4 that Manuele used excessive force when he pointed his service weapon at Decedent and that 5 Manuele was an “integral participant” in Mejia’s excessive use of force. Defendants correctly 6 note that “pointing a loaded gun at a suspect, employing the threat of force, is use of a high 7 level of force.” Espinosa v. City & County of San Francisco, 598 F.3d 528, 537-538 (9th Cir. 8 2010". Thus, use of unreasonable force may be found whether or not there is an actual 9 discharge of a weapon causing harm. Again, because the motion currently under 10 consideration is Defendants’, the court must construe the hotly disputed material facts in favor 11 of the non-moving party. At the very minimum, Plaintiffs’ version of the facts, believed by a 12 jury, could support a finding that the officers who encountered Decedent observed that he was 13 not armed, was not behaving in a hostile or threatening manner and was clad only in his 14 underwear. By the same token, the court certainly cannot rule out the possibility that a jury 15 would reject Defendants’ contention that it was reasonable for Manuele and Mejia to believe 16 that Decedent was just another PCP ingesting burglar breaking into someone’s house in his 17 underpants. 18 Given the facts currently in contention in this case, the court has no basis to find that 19 there remains no issue of material fact whether Manuele or Mejia conducted themselves 20 reasonably when they confronted Decedent with loaded weapons. Summary judgment is 21 therefore not warranted as to either Mejia or Manuele on the issue of excessive use of force in 22 violation of Decedent’s Fourth Amendment Rights. 23 C. Conspiracy to Restrict Access To The Court 24 At paragraph 39(3) of Plaintiffs’ SAC, Plaintiffs alleged that Decedent’s right to 25 access to the courts was infringed by the falsification of evidence by the reporting officers. 26 Plaintiff alleges that the falsification “was part of the custom of the code of silence by the 27 28 21 1 [D]efendants to delay, hinder and obstruct [Decedent’s] constitutional right to access to courts 2 and justice.” Id. In their motion for summary judgment, Defendants attack the sufficiency of 3 Plaintiffs’ SAC by pointing out that Plaintiffs failed to allege what, specifically, was falsified 4 and how such falsification, if any, prevented Plaintiffs’ access to the courts. See Doc. # 42 at 5 38:13-39:20. So far as the court can determine, Plaintiffs have not opposed Defendants’ 6 motion for summary judgment on the issue of conspiracy to prevent access to the courts. 7 Where a defendant moves for summary judgment and the plaintiff does not oppose or raise the 8 claim in opposition, the claim is deemed abandoned. Jenkins v. County of Riverside, 398F.3d 9 1093, 1095 n.4 (9th Cir. 2005). Summary judgment will be granted in favor of Defendants on 10 the issue of conspiracy to deprive Decedent of access to the courts. 11 III. Fourteenth Amendment Claims 12 Plaintiffs’ SAC alleges two claims pursuant to the substantive due process clause of 13 the Fourteenth Amendment. The first claim, improvidently set forth in Plaintiffs’ first claim 14 for relief, alleges Mejia and Manuele were deliberately indifferent to Decedent’s condition and 15 failed to render aid to ameliorate a condition they had caused. The second claim is a claim by 16 Plaintiff and her son, R.G. for loss of companionship and support of Decedent. The court will 17 consider Defendants’ motion for summary judgment as to each claim in turn. 18 A. Failure to Provide Aid 19 In a prior memorandum opinion and order, the court dismissed Plaintiffs’ failure to aid 20 claim against then-defendant County of Kern, which was alleged on the basis of a 20-minute 21 response between the time of the call for medical assistance and the arrival of the ambulance. 22 In Plaintiffs’ SAC, the claim for constitutional harm arising from failure to aid is aimed at 23 officers Mejia and Manuele. The SAC alleges that Mejia and Manuele delayed (for an 24 undisclosed period of time) in calling for medical assistance and that neither rendered any aid 25 at the scene. 26 Although the [Fourteenth] Amendment does not generally require police officers to provide medical assistance to private citizens, DeShaney v. 27 28 22 1 2 3 4 5 6 [Winnebago County Dept. Soc. Svcs., 489 U.S. 189, 197 (1989)] (holding that the due process clause does not generally confer affirmative rights to governmental aid, even where such aid may be necessary to secure life), when a state officer’s conduct places a person in peril in deliberate indifference to their safety, that conduct creates a constitutional claim. See L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992) [. . . ] (concluding a valid section 1983 claim existed against a supervisor at a state facility who placed plaintiff in danger by assigning her to work with an inmate sex offender who had a history of violent assaults on women; he subsequently raped and kidnaped her); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) [. . .] (concluding that a valid section 1983 claim existed against a state police officer who caused a woman to be stranded in a high-crime area at night where she was subsequently raped). 7 Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th Cir. 1997). 8 “Deliberate indifference is ‘a stringent standard of fault; requiring proof that a 9 municipal actor disregarded a known or obvious consequence of his action.’ [Citation.]” Id. 10 (quoting Bryan Cnty. Brown, 520 U.S. 397, 410 (1997). Pursuant to L.W. v. Grubbs, 92 F.3d 11 894 (9th Cir 1996). 12 13 14 15 16 17 18 We define the contours of deliberate indifference in [L.W. v. Grubbs, 92 F.3d 894, 898-900 (9th Cir. 1996)]. Under Grubbs, the standard we apply is even higher than gross negligence – deliberate indifference requires a culpable mental state. Id. The state actor must “recognize[ ] [an] unreasonable risk and actually intend[ ] to expose the plaintiff to such risks without regard to the consequences to the plaintiff.” Id. at 899 (internal quotation omitted). In other words, the defendant “knows that something is going to happen but ignores the risk and exposes [the plaintiff] to it.” Id. at 900. The deliberate-indifference inquiry should go to the jury if any rational factfinder could find this requisite mental state. [Citation]. Patel v. Kent School Dist., 648 F.3d 965, 974 (9th Cir. 2011). 19 Plaintiffs’ primary contention is that Mejia and Manuele acted with deliberate 20 indifference when they failed to render any aid themselves prior to the arrival of paramedics. 21 In addition, there is an inference, if not outright allegation, that there was an unwarranted 22 delay between the time Decedent was shot and the time Manuele radioed for a medical 23 response unit. The court presumes the delay in requesting an ambulance corresponds to the 24 time Mejia and Manuele spent “clearing” the remainder of Decedent’s apartment area. 25 26 There is no question that the shooting of Decedent by Mejia placed Decedent in a perilous situation. Whether the officers’ conduct can be said to amount to deliberate 27 28 23 1 indifference depends on whether either the delay (if any) in radioing for an ambulance or the 2 non-performance of first aid by the officers can be said to amount to a conscious disregard of 3 Decedent’s condition. With regard to the delay, if any, in making the call for ambulance 4 assistance, Defendants allege, and Plaintiffs do not dispute, that Mejia and Manuele proceeded 5 to examine the rest of the apartment area for intruders because they held the subjective belief 6 they could encounter another, potentially dangerous person lurking elsewhere in the 7 apartment. Whether or not this belief was reasonable, there is no doubt that any delay in 8 making the radio request for ambulance assistance was due to the perceived need to complete 9 the search, not because of a conscious neglect of Decedent and his condition. 10 With regard to the failure to provide first aid during the time between the radio request 11 for medical assistance and the time the ambulance arrived, the court regards the failure to 12 provide first aid as the risk to which Decedent was exposed. From that point of view, 13 deliberate indifference requires a showing that Mejia and Manuele knew that by not 14 performing any hands-on first aid, they were subjecting Decedent to a substantially greater risk 15 that if they had applied first aid. Plaintiffs have alleged no facts that would allow the court to 16 make that presumption. Pursuant to Panilla and other cases that illustrate deliberate 17 indifference, the court must have some basis, whether it be common experience or a 18 demonstration of what the officers actually knew, to make the determination that it was clear 19 under the circumstances that a reasonable officer would have perceived a substantially greater 20 risk of harm arising from the non-performance of the first aid measures that Plaintiffs suggest 21 should have been taken. The court cannot make this determination. It is not at all clear to the 22 court that the officers knew or should have known that their failure to do anything to or for 23 Decedent would substantially increasing the risk to decedent. What steps should be taken in 24 the event of a bullet wound to the chest is not self-evident. In the absence of a showing that 25 there is a piece of knowledge that would be possessed by any reasonable police officer 26 indicating that some particular first aid should be rendered, the court cannot find that the 27 28 24 1 2 3 failure to provide hands-on first aid is evidence of deliberate indifference. Defendants’ motion for summary judgment as to Plaintiffs’ Fourteenth Amendment claim for deliberate indifference will therefore be granted. 4 B. Loss of Companionship and Support 5 Plaintiffs Manuela Morales and R.A.M each allege a separate claim under the 6 substantive due process clause against Mejia and Manuele for the loss of companionship and 7 support of their husband and father, respectively. Somewhat strangely, Defendants’ motion 8 for summary judgment as to Plaintiffs’ loss of companionship claims only addresses R.A.M.’s 9 claim and Defendants’ reply memorandum only gives a very cursory argument that Manuela 10 Morales is not entitled to compensation under the Fourteenth Amendment because she had 11 limited contact with Decedent and because Defendants caused no constitutional harm to 12 Decedent. The court presumes it is Defendants’ intent to oppose both claims on the grounds 13 of a lack of a close relationship between the Plaintiffs and Decedent. 14 There is no actual dispute between the parties as to the legal standard for determining 15 whether there is a violation of Fourteenth Amendment substantive due process rights. There 16 is a constitutional interest in familial companionship and society that extends to children to the 17 companionship and support of their parents just as the same constitutional interest exists in the 18 relationship of parents to their children. Smith v. City of Fontana, 818 F.2d 1411, 1488 (9th 19 Cir. 1983). The same principles establish a constitutional basis for the right of spouses to the 20 support and companionship of each other. See Cosby v. City of Oakland, 1997 WL 703776 21 (N.D. Cal. 1997) at *5 n.6. A claim for loss of companionship implicates substantive due 22 process rights under the Fourteenth Amendment. See Smith, 818 F.2d at 1419-1420 (because 23 the state has no legitimate interest in interfering with liberty interests arising from familial ties 24 by using excessive force, the protections offered by the substantive due process clause are 25 appropriate). In the context of claims for loss of companionship, such claims are judged under 26 the standards of “deliberate indifference or reckless disregard.” See Smoot v. City of 27 28 25 1 Placentia, 950 F.Supp. 282, 283-284 (C.D. Cal. 1997) (citing Lewis v. Sacramento County, 98 2 F.3d 434, 441 (9th Cir. 1996). 3 The facts alleged by Plaintiffs establish that, while Plaintiffs reside in Mexico and 4 Decedent resided in Delano, California, the purpose of Decedent’s residence in California was 5 to earn and save money for the purpose of buying property in Mexico. Plaintiffs allege that 6 Decedent sent money on a regular basis to Plaintiffs. Defendants allege that R.A.M. has had 7 little on-going relationship with Decedent and that he cannot therefore maintain a Fourteenth 8 Amendment claim against Defendants. At the same time, Defendants admit that R.A.M. had 9 at least one instance of direct contact with his father. 10 While Defendants’ motion for summary judgment on the issue of Plaintiffs’ loss of 11 companionship and support claim is mostly barren of facts that would be relevant to the 12 court’s determination, Plaintiffs’ claim for summary adjudication is relatively rich in facts that 13 are irrelevant to that motion but are quite relevant to the relationship that existed between 14 Decedent and his wife and child. Significantly, Defendants did not dispute the truth of the 15 facts relating to the existing relationship between Decedent and his wife and child, only their 16 relevance. When the court considers those facts in the context of Defendants’ motion for 17 summary judgment on Plaintiffs’ Fourteenth Amendment claims for loss of support and 18 companionship, the court has no difficulty in determining that Defendants’ contention that the 19 claims of Decedent’s wife and child must fail because of the lack of physical closeness is 20 without merit. Based on Plaintiffs’ alleged facts, the court finds that Decedent and his family, 21 while physically separated, had a relationship based on commitment, sacrifice, effort toward a 22 commonly held goal and a vision of an improved lot in life. The court cannot say that, as a 23 matter of law, that relationship was less worthy of Fourteenth Amendment protection than a 24 more conventional one. 25 26 Defendants also contend that they are entitled to summary judgment because Plaintiffs cannot show that the actions of Mejia and Manuele evince deliberate indifference or reckless 27 28 26 1 disregard of the rights of Decedent’s wife and child. The court disagrees. Again, taking the 2 facts that are currently sharply disputed in the light most favorable to Plaintiffs, they tend to 3 show that Mejia and Manuele knew or should have known that they were entering a private 4 and separate space where Decedent had a constitutionally-guaranteed privacy interest. After 5 unlawfully entering the Decedent’s apartment space, Mejia and Manuele encountered a plainly 6 unarmed person who was not advancing on or threatening the officers. Under this set of facts, 7 which may or may not be proven at trial, the court has no problem finding that a jury could 8 find the necessary state of mind with regard to Majia and Manuele. The court concludes that 9 Defendants are not entitled to summary judgment as to Plaintiffs’ claims for loss of 10 companionship and support under the Fourteenth Amendment. 11 IV. Supervisor Liability – City of Delano and DeRosia 12 Plaintiffs’ SAC alleges a claim against Defendant City of Delano for failure to 13 properly select and train officers and failure to properly investigate instances of officer 14 involved shootings and failure to take appropriate remedial action subsequent to officer 15 involved shootings. A municipal entity is liable only for the actions of "its lawmakers or by 16 those whose edicts or acts may fairly be said to represent official policy." Monell v. Dep’t of 17 Soc. Services, 436 U.S. 658, 694 (1978). "To hold a local government liable for an official's 18 conduct, a plaintiff must first establish that the official (1) had final policymaking authority 19 ‘concerning the action alleged to have caused the particular constitutional or statutory 20 violation at issue' and (2) was the policymaker for the local governing body for the purposes of 21 the particular act." Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000) (quoting 22 McMillian, 520 U.S. at 785, 117 S.Ct. 1734). “A municipality is not liable for the random acts 23 or isolated incidents of unconstitutional action by a non-policymaking employee. [Citations.]” 24 Sepatis v. City and County of San Francisco, 217 F.Supp.2d 992, 1005 (N.D. Cal. 2002). 25 “Rather, to impose municipal liability for a violation of constitutional rights, a plaintiff must 26 show: (1) that plaintiff was deprived of a constitutional right; (2) that the municipality had a 27 28 27 1 policy; (3) that this policy amounted to deliberate indifference of plaintiff’s constitutional 2 rights; and (4) that the policy was the moving force behind the constitutional violation.” Id. 3 (citing Plumeau v. Sch. Dist. #40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). 4 Case authority in this circuit has broadened the meaning of “policy” such that a 5 plaintiff may establish municipal liability “by demonstrating that (1) the constitutional tort 6 was the result of a ‘longstanding practice or custom which constitutes the standard operating 7 procedure of the local government entity;’ or (2) the tortfeasor was an official whose acts 8 fairly represent official policy such that the challenged action constituted official policy; or (3) 9 an official with final policy-making authority ‘delegated that authority to, or ratified the 10 decision of, a subordinate.’ [Citation]” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) 11 (quoting Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-985 (9th Cir. 2002). 12 Further, a policy “may be inferred from widespread practices or ‘evidence of repeated 13 constitutional violations for which the errant municipal officers were not discharged or 14 reprimanded.’” Nadell v. Las Vegas Metro. Police Dept., 268 F.3d 924, 929 (9th Cir. 2001) 15 (quoting Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992). “A plaintiff need not show 16 that a municipality affirmatively encouraged officers to take the lives of citizens; rather a 17 municipality may be liable under Section 1983 for constitutional injuries inflicted by its 18 officers if it fails to adequately guard against such injuries through training and supervision.” 19 Perrin v. Gentner, 177 F.Supp.2d 1115, 1123 (D. Nev. 2001). “A municipality will be held to 20 a ‘constructive notice’ standard for failing to take corrective measures where information 21 about officer misconduct plainly indicates a need for such measures.” Id. 22 Plaintiffs’ opposition to Defendant Monell claim relies primarily on the Declaration of 23 Roger Clark, Doc. # 61. The Clark Declaration makes two allegations that are relevant to this 24 inquiry. First, Clark alleges that Mejia, a Level II reserve officer, had not received critical 25 POST training, including “‘shoot-don’t shoot’ training reinforced by role play and sumulation 26 required in the POST basic curriculum.” Clark Dec. at ¶ f. Clark alleges that this lack of 27 28 28 1 training directly resulted in the shooting of Decedent, which was completely unwarranted and 2 avoidable with the use of proper procedures. Clark states that Mejia was deployed into 3 situations such as the one under consideration without any testing “to make sure he could 4 competently be part of an officer response to a possible residential burglary in progress.” Id. 5 The second area where Clark’s Declaration sets forth opinion that may implicate City 6 of Delano has to do with the response of Police Department Officials to the Internal Affairs 7 investigation of the shooting and the failure of that investigation to note any of what Clark 8 opines are glaring and obvious problems with the investigation itself and with the conclusions 9 drawn by the investigators. Clark opines that the Internal Affairs investigation outcome “is 10 reflective of a custom and practice within the Delano Police Department to look the other way 11 rather than hold to their written and publically expressed policies and procedures. 12 With regard to Clark’s opinion that the Internal Affairs investigation of Mejia’s 13 shooting of Decedent was inadequately conducted and that the acceptance of the 14 investigation’s findings constitutes ratification of unconstitutional conduct, the court finds that 15 these alleged facts are not sufficient to establish a claim for entity or supervisor liability. 16 Plaintiffs rely heavily on Larez v. City of Los Angeles, for the proposition that failure to 17 adequately investigate an instance of unconstitutional force can indicate the supervisor’s 18 ratification and the existence of a policy reflecting deliberate indifference of citizen’s 19 constitutional rights. District courts in California have, however, declined to apply Larez 20 where there is no evidence of a history of similarly whitewashed investigations. For example, 21 this court, in Jones v. County of Sacramento, 2010 WL 2843409 (E.D. Cal. 2010), noted the 22 fact that in Larez and in Watkins v. City of Oakland, 145 F.3d 1087, 1093-94 (9th Cir. 1997), 23 a case that followed Larez, the factual predicates of a finding of possible supervisor liability 24 based on failure to adequately investigate involved the existence of evidence tending to 25 indicate that the report that was not acted on was preceded by other indications of the type of 26 unconstitutional behavior complained of. Jones, 2010 WL 2843409 at *6; see also, Phillips v. 27 28 29 1 City of Fairfield, 406 F.Supp.2d 1101, 1116 (E.D. Cal. 2005) (finding Larez not applicable 2 where there is no evidence of prior disregard of officer misconduct). The court finds that there 3 is not enough evidence of past disregard of misconduct of officer involved shootings for the 4 court to find that Mejia’s shooting was the result of a policy established by the disregard of 5 police officials who had prior notice of patterns of use of unlawful force. 6 Plaintiffs also content that City of Delano and DeRosia are liable because Mejia, a 7 reserve officer, was inadequately trained to handle the situation into which he was deployed. 8 Plaintiffs allege Mejia was deployed pursuant to a policy established by a city official (Police 9 Chief DeRosia) that resulted in Decedent’s constitutional injury. There is no allegation that 10 DeRosia is not an official with policy-making authority within the Police Department. For 11 purposes of this analysis, the court assumes that Plaintiffs’ version of the facts are true, in 12 which case a constitutional violation of Decedents’ rights is established. Plaintiffs’ allege that 13 Mejia did not receive the training normally required of an officer responding to a situation 14 such as the one at bar because of his status as Reserve Officer II. Essentially all of the 15 undisputed material facts alleged by Defendants regarding Mejia’s level of training and 16 experience are disputed by Plaintiffs. Resolving all disputed factual issues in favor of the 17 non-moving party, the court finds there is evidence from which a jury could conclude that 18 Mejia was not sufficiently qualified to handle the situation into which he had been deployed. 19 If, based on Plaintiffs’ version of the facts, a trier of fact were to find that Mejia was 20 inadequately trained with regard to the use of lethal force, then the constitutional harm 21 suffered by Decedent can be understood to flow from: (1) the decision of Mejia and Manuele 22 to enter the apartment, and (2) the position of Mejia as the lead officer or his positioning so as 23 to be the first to confront Decedent. Plaintiffs’ claim for supervisory and entity liability on the 24 issue of training and supervision therefore turns on the question of whether Mejia entry into 25 the apartment and his placement in a front position as the officers entered was within 26 established departmental policy. At present, the court lacks information necessary to make 27 28 30 1 this determination. Given the level of dispute as to the underlying facts, it is unlikely that 2 anything short of trial would be sufficient to resolve the underlying factual situation. The 3 court will therefore deny Defendants’ motion for summary judgment on the issue of entity and 4 supervisory liability without prejudice and subject to renewal at any appropriate point up to 5 and through trial. 6 V. Qualified Immunity: Excessive Force Claims 7 The court has previously discussed the standard for determining claims of qualified 8 immunity and has found that an issue of qualified immunity remains as to Defendants’ claim 9 for qualified immunity with respect to the unwarranted entry into the apartment. With regard 10 to Plaintiffs’ claims for violation of Fourteenth Amendment rights against use of excessive 11 force, the court finds qualified immunity is plainly not applicable. The contours of the Fourth 12 Amendment right against excessive force were thoroughly defined as of the date of the 13 conduct at issue here. If the court’s accepts Plaintiffs’ version of the disputed facts as true, as 14 it must, then there is no doubt that no reasonable officer in Mejia’s situation could have 15 believed that Decedent posed an imminent threat of death or bodily harm to either officer or to 16 the public. Therefore, a reasonable officer under those facts could not have believed that the 17 use of lethal force would not be unconstitutional. 18 The court concludes Mejia and Manuele are not entitled to qualified immunity as to 19 Plaintiff’s claims for unconstitutional use of force. 20 VI. State Law Claims 21 A. Battery 22 Plaintiffs’ sixth and seventh claims for relief allege battery against Defendant Mejia 23 and negligence against both Manuele and Mejia. Defendants contend that the battery claim 24 against Mejia must be determined by the same reasonableness standard that is used to 25 determine the excessive force claim under the Fourth Amendment. See Doc. # 42 at 52:15:18 26 (citing Edison v. Ahaheim, 63 Cal.App.4th 1269, 1274-1275 (1998)). Defendants contend 27 28 31 1 that “once it is determined that an officer’s conduct did not violate Plaintiffs’ federal rights, 2 their corresponding claims of negligence and battery must be dismissed. Simi Valley . 3 Superior Court, (2003) 111 Cal.App.4th 1077, 1084).” Id. at 19-22. Presuming Defendants 4 contentions to accurately reflect applicable law, the court must deny Defendants’ motion for 5 summary judgment as to Plaintiffs’ battery claim because it cannot dismiss the corresponding 6 federal claim under the Fourth Amendment. 7 B. Negligence 8 As this court has previously noted, negligence is measured by the same standard as 9 battery and excessive use of force under the Fourteenth Amendment. See Abston v. City of 10 Merced, 2011 WL 2118517 (E.D. Cal. 2011) at *16 (“Plaintiffs’ claim for negligence- 11 wrongful death flows from the same facts as the alleged Fourth Amendment violation for 12 excessive force and are measured by the same reasonableness standard.”). To this, Defendants 13 add the contention that negligence cannot be found from the manner in which the officers 14 deployed. See Doc. # 42 at 53:1-5 (citing Brown v. Ransweiler, 171 Cal.App.4th 516, 535 15 (2009). Defendants’ motion for summary judgment on Plaintiffs’ claim for negligence must 16 fail for the same reason as the motion for summary judgement on the claims for excessive 17 force and battery must fail; the facts, taken in the light most favorable to Plaintiffs are 18 sufficient to support these claims. That a claim for negligence cannot be based on the manner 19 in which the officer or the force was deployed is not determinative of the validity of Plaintiffs’ 20 claim. Seen in the factual light most favorable to Plaintiffs, no amount of force would have 21 been reasonable against a person known to be unarmed and not threatening and lawfully on 22 the premises. 23 C. Wrongful Death 24 “The elements of the cause of action for wrongful death are the tort (negligence or 25 other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss 26 suffered by the heirs.” Quiroz v. Seventh Ave. Center, 140 Cal.App.4th 1256, 1263 (2006); 27 28 32 1 Wright v. City of Los Angeles, 219 Cal.App.3d 318, 344, (1990). The California Supreme 2 Court has held that “an officer's lack of due care can give rise to negligence liability for the 3 intentional shooting death of a suspect.” Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (citing 4 Grudt v. City of Los Angeles, 2 Cal.3d 575, 587 (1970)). Thus, the tort claims for wrongful 5 death and negligence are connected for purposes of the present motion for summary judgment 6 in that the ability of either to withstand Defendants’ summary judgment motion is dependent 7 on Plaintiffs’ ability to show there remains an issue of material fact as to whether Mejia’s 8 shooting of Decedent was negligent. 9 The court concludes that Defendants are not entitled to summary judgment as to any of 10 Plaintiffs’ state law claims. 11 VII. Pain and Suffering 12 Subsection 377.34 of the California Code of Civil Procedure prohibits recovery for 13 pain and suffering on behalf a decedent by the personal representative or successor in interests 14 on the decedent’s cause of action. As Plaintiffs note, district courts in California have split on 15 the issue of whether an section 377.34 is a bar to the recovery for pain and suffering or 16 hedonic damages in California in actions pursuant to section 1983. In the Eastern District, 17 courts have, for the most part, followed the decision in Venerable v. City of Sacramento, 185 18 F.Supp.2d 1128, 1133 (E.D. Cal. 2002) holding that California’s prohibition of recovery for 19 hedonic damages under section 377.34 is not unconstitutional and does not conflict with the 20 purpose of 42 U.S.C. section 1983. Other district courts in the Northern and Central Districts 21 have concluded that California’s limitations on recovery for pain and suffering are 22 inconsistent with the purposes of section 1983 and have declined to apply California’s 23 statutory limitation in 1983 cases. See, e.g. Williams v. County of Oakland, 915 F.Supp. 1074 24 (N.D. Cal. 1996); Garcia v. Whitehead, 961 F.Supp. 230, 233 (C.D. Cal. 1997) (“California’s 25 survivorship statute is inconsistent with the purposes of section 1983 because it excludes 26 damages for pain and suffering of the decedent.”). While the trend in the Eastern District to 27 28 33 1 exclude damages for pain and suffering in section 1983 cases has been fairly consistent since 2 the decision in Venerable, see Contreras v. County of Glen, 725 F.Supp.2d 1151, 1155-1156 3 (E.D. Cal. 2010) some courts have followed only reluctantly. See e.g. Duenez v. City of 4 Manteca, 2011 WL 5118912 (E.D. Cal. 2011) at *9. 5 This court will follow the line of cases that predominate in this district by granting 6 summary judgment on Plaintiffs’ claim for pain and suffering for two reasons. First, like the 7 court in Duenez, this court is concerned that parties that come before District courts in this 8 district should be treated similarly and second, this court feels the instant case presents a rather 9 weak set of facts to support a departure from district practice. In this action, there is little 10 evidence to support a claim for significant pain or suffering and there is, at the same time, a 11 fairly rich basis for recovery of damages on other grounds. 12 13 The court will grant Defendants’ motion for summary judgment as to Plaintiffs’ claims for compensation for Decedents’ pain and suffering. 14 15 16 THEREFORE, in accord with the foregoing discussion, it is hereby ORDERED that: 1. Plaintiffs’ motion for summary judgment as to Plaintiffs’ claim of violation of 17 Decedent’s Fourth Amendment right against unlawful search is hereby STAYED. 18 Each party shall submit additional briefing setting forth additional alleged facts and 19 legal argument on the issue in light of the foregoing discussion. Such additional 20 briefing shall be filed and served not later than seven (7) days from the date of service 21 of this order. Defendants’ motion for summary judgment on the issue of unlawful 22 search is correspondingly STAYED. 23 2. Defendants’ motion for summary judgment as to Mejia and Manuele on Decedent’s 24 claims under the Fourth Amendment, including claims for unlawful use of force, is 25 hereby DENIED. 26 3. Defendants’ motion for summary judgment on Plaintiffs’ claim of conspiracy to deny 27 28 34 1 2 access to the courts is hereby GRANTED. 4. 3 4 Amendment for failure to provide aid is hereby GRANTED. 5. 5 6 Defendants’ motion for summary judgment on Decedent’s claim under the Fourteenth Defendants’ motion for summary judgment on Plaintiffs’ claim under the Fourteenth Amendment for loss of support and companionship is hereby DENIED. 6. Defendants’ motion for summary judgment on Decedent’s claims against DeRosia and 7 the City of Delano on the theory of failure to properly supervise, select or train is 8 hereby DENIED WITHOUT PREJUDICE. The motion shall be subject to renewal at 9 any time deemed proper by Defendants. 10 7. 11 12 13 14 Defendants’ motion for summary judgment on Decedent’s claims under California state law for battery, wrongful death and negligence are each hereby DENIED. 8. Defendants’ motion for summary judgment on Decedent’s claims for pain and suffering is hereby GRANTED. IT IS SO ORDERED. 15 16 Dated: 0m8i78 February 14, 2012 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 35