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Abston v. City of Merced

October 20, 2009


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


(Doc. 16)


Before the court is a Rule 12(c) motion for judgment on the pleadings brought by Defendant Shane Kensey, a California Highway Patrol officer. The motion is directed at two claims asserted by Plaintiffs Maureen, Corey, Jacy, and Linda Abston in their complaint for a "Violation of Civil Rights." Defendant City of Merced and its police officers named as defendants in this case, Defendants Russ Thomas, J. Hart, B. Dalia, and N. Arellano, have joined Kensey's motion.


In this civil rights case, Richard Abston, a retired truck driver, died after allegedly being tased by law enforcement. Mr. Abston's surviving spouse, Maureen, and his surviving children, Corey, Jacy, and Linda, are the plaintiffs in this case. The following background facts are taken from their complaint, Document ("Doc.") 1, filed March 18, 2009.

A. Allegations In The Complaint

On the morning of February 7, 2008, the California Highway Patrol dispatched information regarding a vehicle traveling the wrong way on Highway 99. Officer Kensey responded to the dispatch and stopped a silver Dodge pickup truck, driven by Mr. Abston, which had sideswiped several vehicles. (Doc. 1 at 3.)

At the time of the stop, Mr. Abston had no shirt on, and officer Kensey could see Mr. Abston's torso. On his sternum, Mr. Abston had a 9-inch scar as a result of open heart surgery about two years prior. Mr. Abston had a defibrillator implanted in his chest to treat his history of congestive heart failure and cardiomyopathy. (Id. at 3-4.)

Officer Kensey attempted to remove Mr. Abston from the stopped vehicle, but Mr. Abston allegedly resisted. Purportedly, Mr. Abston was sweating profusely, began "speaking of God and of helping a child," seemed agitated and appeared under the influence of a drug. With a baton, Officer Kensey struck Mr. Abston several times allegedly to get the "obviously intoxicated" Mr. Abston under control and arrest him. (Id. at 4.)

Mr. Abston fled from the vehicle to a big rig stopped in the middle of Highway 99 and climbed on top of the big rig's cab. Officer Kensey pursued Mr. Abston, climbed onto the cab, and then struck Mr. Abston with the baton. Mr. Abston, however, did not desist his resistance. Officer Kensey then sprayed "O.C. spray" (also known as pepper spray) at Mr. Abston. (Id. at 4.)

Several defendant officers from the Merced Police Department arrived on the scene, including officers Arellano and Hart. Arellano climbed onto the big rig's cab, directed Mr. Abston to get down, and then held Mr. Abston against the big rig. Mr. Abston "continued to struggle" and one officer recommended that they "simply let go" of him. For reasons unspecified, Mr. Abston was released and he ran from the officers. On foot, Hart pursued the topless and intoxicated Mr. Abston and shot him in the back with a stun gun, applying the electronic charge for an unknown period of time. Mr. Abston fell to the ground face-first and broke his nose in the process. Mr. Abston continued to struggle and to "speak[] of God." The officers repeatedly told Mr. Abston to "chill out." Officer Dalia arrived and noticed Mr. Abston on the ground and several officers struggling with him. While Mr. Abston lay face down, several officers "continued using excessive force" on Mr. Abston. (Id. at 4-6.)

A female C.H.P. officer arrived on the scene and placed nylon restraints on Mr. Abston's legs. At some point, Mr. Abston stopped moving, his face turned purple, and he was turned onto his back. Mr. Abston was "coding." Paramedics attended to Mr. Abston. An unnamed police officer also attempted to locate Mr. Abston's pulse. That officer then took over chest compressions, but was unsuccessful, and Mr. Abston died.*fn1 (Id. at 6.)

Allegedly, Taser International, a company that designs, tests, delivers and prepares training materials for stun guns, has issued two published legal warnings specifically notifying taser users to avoid targeting the chest area of individuals with known histories of heart attacks. One publication also noted that individuals exhibiting symptoms of "Excited Delirium" are susceptible to "Sudden In-Custody Death Syndrome" when tased. (Id. at 5.)

B. Plaintiffs' Claims

In their complaint, Plaintiffs allege that Mr. Abston "died as a direct consequence of the excessive force used against him by the Defendants involved in this incident." (Id. at 8.) Plaintiffs allege seven causes of action, only two of which are at issue in this ...

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