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Moseley v. Yandell

September 17, 2008

KENYA KWAME MOSELEY, PLAINTIFF,
v.
JAMES YANDELL, INDIVIDUALLY AND AS A POLICE OFFICER FOR THE CITY OF CERES; CITY OF CERES; JOSHUA KLINGE, INDIVIDUALLY AND AS A POLICE OFFICER FOR THE CITY OF CERES; ART DEWERK, THE CITY OF CERES CHIEF OF POLICE; DOES 1-25, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 11/30/09 Filing Deadline: 12/15/09 Non-Dispositive Motion Dispositive Motion Filing Deadline: 12/30/09 and Settlement Conference Date: 8/26/09 10:00 Ctrm. 10

Pre-Trial Conference

I. Date of Scheduling Conference. September 17, 2008.

Date: 3/8/10 11:00 Ctrm. 3 Trial Date: 4/20/10 9:00 Ctrm. 3 (JT-7days)

III. Summary of Pleadings. Plaintiff's Contentions

1. Ceres Police Officers, Defendants James Yandell, and Joshua Klinge, at approximately 11:30 p.m. on May 29, 2007, stopped Plaintiff Kenya Moseley as he was driving on Central Avenue in Ceres. While stopped, Moseley saw one of the officers approach with a drawn firearm. Concerned for his immediate safety, Moseley drove away, continuing until the patrol car overtook him. As Moseley left his car he heard one of the officers say the words "armed and dangerous" into his shoulder microphone and thought he was about to be shot. Moseley ran approximately eight feet to a cyclone fence which bordered the freeway and began to climb the fence and was shot from behind, being struck in the shoulder and lower back. Moseley turned and raised his hands, weaponless, to surrender. The officer continued to fire and hit Moseley in the arm and in the abdomen. Moseley passed out as he was placed in handcuffs, his arm broken by one of the shots. He was then transported to a hospital and admitted for emergency treatment.

2. Plaintiff contends the Officers exercised an unwarranted and unlawful use of lethal force in taking him into custody and that under the circumstances of the arrest, the Officers are not entitled to qualified immunity. Plaintiff also contends the City of Ceres failed to train, supervise and/or retain the Defendant Officers. Plaintiff seeks monetary and exemplary damages, medical and special damages, attorney's fees and costs.

Defendants' Contentions

1. Defendants contend that Plaintiff led officers on a high speed chase while throwing narcotics from his vehicle. As Plaintiff ran from his vehicle and ignored Officers' commands to stop, Plaintiff reached for his waistband while jumping over a fence. Believing that Plaintiff was reaching for a weapon, Officer Yandell fired his weapon and took Plaintiff into custody. (Plaintiff was found to have more illegal narcotics in his pants pocket and was later found guilty of felony evading and possession of narcotics). Defendants contend that the use of force was reasonable.

IV. Orders Re Amendments To Pleadings.

1. The parties do not anticipate amending the pleadings at this time.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. Plaintiff is a citizen of the United States and was a resident of the Eastern District of California, Fresno Division, at the time of the events alleged in the complaint.

2. Plaintiff was not armed at the time he was shot.

3. Plaintiff received wounds in the shoulder, back, arm, and abdomen.

4. Officer Yandell was acting as field training officer for Officer Klinge.

5. Plaintiff drove away from the initial vehicle stop causing Defendants to pursue him.

6. Plaintiff left his car through the passenger door and ran toward a fence.

7. Plaintiff was provided medical care.

8. Each Officer was acting within the course and scope of his employment at all times alleged in the complaint.

B. Contested Facts

1. All remaining facts, including facts related to qualified immunity, are in dispute.

VI. Legal ...


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