The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION OF THE ISSUES, DEFENDANTS' OBJECTIONS AND MOTION TO STRIKE (DOCS. 46, 65)
Plaintiff Kristal Madrid ("Plaintiff") proceeds with this action against Defendants City of Fresno ("Defendant City"), Jerry Dyer, Juan Gurrola, Justin Bell, Monty Lewis, Jr., George Valdez, and Frank Mendoza (collectively, "Defendants"), alleging claims for (1) civil rights violations pursuant to 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the Constitution; (2) assault and battery; (3) violation of California Civil Code § 51.7 (Unruh Civil Rights Act); (4) violation of California Civil Code § 52.1 (Bane Civil Rights Act); (5) negligence -- wrongful death; and (6) negligent hiring, retention, training, supervision, and discipline.
Before the court is Defendants‟ motion for summary judgment and/or adjudication of the issues. Doc. 46. Plaintiff filed an opposition on January 24, 2011 (Doc. 58), and supporting declarations and exhibits on January 25, 2011, one day late (Docs. 60-61). Defendants filed a reply (Doc. 66) and an objection and motion to strike (Doc. 65). Plaintiff filed an opposition to Defendant‟s objection and motion to strike. Doc. 67.
On the night of January 8, 2007, CHP Officers Dusten Dimmer and Derek Saladana encountered Pedro Madrid walking northbound on the center divider of Freeway 41 in Fresno, California. Mr. Madrid was unarmed and wearing a sleeveless shirt without a jacket. When asked what he was doing walking on the freeway, Mr. Madrid replied that he was running from someone. Officer Dimmer did not observe that Mr. Madrid was intoxicated, and did not recall if Mr. Madrid was sweating or otherwise exhibited signs that indicated that Mr. Madrid was under the influence of a narcotic such as methamphetamine. Officers Dimmer and Saladana concluded that further detention of Mr. Madrid was not necessary, and transported him to the Fresno Rescue Mission.
At approximately 12:20 a.m., Sergeant Michael Maguire was driving down Kern Street near E Street over Freeway 99 in Fresno, California, and saw Mr. Madrid walking down the middle of the street. Sergeant Maguire declares that Mr. Madrid was walking and moving in an unusual manner, flailing his arms around. Sergeant Maguire activated his spotlight and shined it in Mr. Madrid‟s direction. Mr. Madrid fled down the embankment of Freeway 99. Sergeant Maguire turned off his lights, waited for Mr. Madrid to return to no avail, then drove to the police station.
At approximately 12:33 a.m., Officer Ronnie Pack noticed Mr. Madrid walking barefoot in the middle of the street, holding his shoes, and yelling at someone, although no one else was present. In response to Officer Pack‟s queries, Mr. Madrid said that someone was trying to get him and he was yelling at that person. Mr. Madrid complied with Officer Pack‟s request to step out of the roadside and to submit to a pat down (the pat down did not yield any weapons). Mr. Madrid also complied with Officer Pack‟s request to sit on the curb while Officer Pack ran a "wants and warrants" check on Mr. Madrid over police radio. Shortly thereafter, Sergeant Maguire asked for the subject‟s physical description, and reported over the police radio that the subject matched the description of a person who had run from Sergeant Maguire earlier that evening.
Officer Pack observed that Mr. Madrid appeared to be fidgety and unable to stay still. In response to Officer Pack‟s questioning, Mr. Madrid told Officer Pack that he had snorted meth, which Officer Pack understood to mean methamphetamine, 1 1/2 hours before his encounter with Officer Pack. Under City of Fresno policies, officers who encounter persons who appear to be under the influence of drugs/narcotics must detain such persons and conduct an investigation. After conducting a physical examination of Mr. Madrid (including observing Mr. Madrid‟s dilated pupils and elevated heart rate), Officer Pack believed Mr. Madrid was under the influence of methamphetamine in violation of Health and Safety Code § 11550.
Officer Pack observed that Mr. Madrid appeared anxious at the prospect of going to jail. Officer Pack attempted to calm Mr. Madrid by explaining that he only planned to issue a citation to him. Officer Pack was then advised over the radio that Mr. Madrid was on felony probation for narcotics violations.
Based on Officer Pack‟s evaluation of Mr. Madrid and what he had observed or had been reported to him, Officer Pack believed that he had probable cause to arrest Mr. Madrid for being under the influence of a controlled substance and for violation of probation. Officer Pack decided to arrest Mr. Madrid. Another patrol car with Officers David Lambert and Michael Hansen pulled up behind Officer Pack.
As Officer Pack touched Mr. Madrid‟s right wrist, Mr. Madrid stood up and started running away westbound on Kern Street. Officer Pack ran after Mr. Madrid, yelling at him several times that he was under arrest and to stop. Officer Pack reported Mr. Madrid‟s flight (a leg-bail) over the police radio, briefly describing Mr. Madrid‟s physical appearance and location. Officer Pack told Mr. Madrid several times to stop running, but Mr. Madrid did not comply with Officer Pack‟s verbal orders.
Officer Pack continued chasing Mr. Madrid on foot westbound on Kern Street as he observed Mr. Madrid climb over a fence on the south side of Kern Street leading to Freeway 99. Officer Lambert also pursued Mr. Madrid on foot while Officer Hansen followed in the patrol car. Mr. Madrid ran down the freeway embankment. Officer Pack told him to stop and pointed, but did not deploy, his TASER X-26 Electronic Control Device ("TASER") at Mr. Madrid.
Mr. Madrid turned around on the embankment and faced Officer Pack as if he was going to come back on the embankment and surrender. Mr. Madrid turned around and ran down the embankment and underneath the Kern Street overpass on Freeway 99. Officer Pack saw other police officers take Mr. Madrid into custody on the west side of the freeway, and heard someone yelling, "Stop resisting." Defendant Bell arrived at the location and went down the embankment to assist the officers.
Responding to Officer Pack‟s reports, Defendants Lewis and Gurrola arrived at Mr. Madrid‟s reported location and positioned their patrol car on the west end of Freeway 99 on the Kern Street overpass. Defendant Gurrola saw other police officers on the east end of the overpass and heard a radio call that Mr. Madrid was on the east embankment. Defendant Gurrola did not see Mr. Madrid at first, then heard a radio call that Mr. Madrid was heading westbound, down the embankment, across the northbound lanes of Freeway 99. Defendant Gurrola jumped the fence on the west side of Freeway 99 and saw Mr. Madrid on Freeway 99 attempting to go over the raised concrete center divider below. Mr. Madrid was headed westbound across Freeway 99. There was moderate traffic in both the northbound and southbound lanes of Freeway 99. Defendants Gurrola, Lewis, and Bell came down the embankment to intercept Mr. Madrid.
As Defendant Gurrola reached the bottom of the embankment, he saw Mr. Madrid in the middle of Freeway 99 near the center divider. Defendant Gurrola repeatedly said, "Stop, police," but Mr. Madrid continued fleeing in a southwest direction down the middle of three southbound lanes on Freeway 99. Defendant Gurrola crossed in an eastbound direction on the southbound lanes of Freeway 99 toward the concrete divider and tried to intercept Mr. Madrid. Defendant Gurrola kept telling Decedent to stop. Defendant Gurrola identified himself as a police officer and was dressed in full uniform with a badge and two Fresno Police Department patches.
Defendant Gurrola attempted to grab Mr. Madrid from behind, but Mr. Madrid pushed away. Defendant Gurrola removed his TASER with his left hand as he continued trying to grab Mr. Madrid with his right hand. Defendant Gurrola did not use the TASER on Mr. Madrid because he was concerned Mr. Madrid would fall to the ground and get run over by passing traffic. Mr. Madrid continued to push Defendant Gurrola‟s arms away as he continued running.
Defendant Lewis caught up to Defendant Gurrola and Mr. Madrid in the middle of a southbound lane on Freeway 99. Traffic was approaching on Freeway 99. Defendant Lewis grabbed Mr. Madrid from the No. 2 lane at approximately the same time that Defendant Gurrola made contact with him. Defendant Lewis pulled Mr. Madrid in a westbound direction towards Freeway 99‟s west embankment and away from oncoming traffic.
Defendant Gurrola and Mr. Madrid were face to face as they lost their balance and fell to the ground at the west edge of the shoulder to the freeway. Upon hitting the ground, Mr. Madrid continued actively resisting the officers‟ attempts to restrain him. Defendant Gurrola attempted to position himself on top of Mr. Madrid, but Defendant Gurrola ended up with his legs facing south to the left side of Mr. Madrid, his torso over Mr. Madrid‟s torso and his chest on Mr. Madrid‟s back-left shoulder area. Defendant Gurrola pushed Mr. Madrid down to restrain his movements. Mr. Madrid thrashed and kicked his legs, moved and flailed his arms, and moved his torso up and down off the ground from side to side. Mr. Madrid pulled his arms underneath his chest as he faced downward. Defendant Gurrola told Mr. Madrid several times to stop resisting while trying to get Mr. Madrid‟s hands from underneath his body.
Defendant Lewis was kneeled or crouched on the ground to the right of Mr. Madrid. Defendant told Mr. Madrid to put his hands behind his back. Defendant Lewis tried to get control of Mr. Madrid‟s right hand to bring it out for handcuffing by pulling near Mr. Madrid‟s bicep and forearm area. Defendant Lewis could not pull Mr. Madrid‟s arm out. Mr. Madrid continually kept his arms underneath his body, putting his hands forward underneath his chest and leaning in a forward motion.
Defendant Valdez arrived and took a position on the right side of Mr. Madrid and Defendant Lewis. Defendants Valdez and Lewis were unable to pull Mr. Madrid‟s right arm from underneath his chest. Defendant Gurrola was near Mr. Madrid‟s upper left back-shoulder area and told Mr. Madrid to stop resisting. Defendant Lewis was near Mr. Madrid‟s waist trying to grab Mr. Madrid‟s right arm from under his body. Defendant Valdez slipped in between both officers and was shoulder to shoulder with Defendant Lewis, with Defendant Valdez‟s knees next to Mr. Madrid on his right side.
Defendant Gurrola attempted to place a carotid hold on Mr. Madrid with his right arm over the top of Mr. Madrid‟s shoulder, but was unsuccessful because Mr. Madrid was moving so forcefully. Defendant Gurrola repositioned his left arm on Mr. Madrid‟s upper back, across his shoulder area, and near his neck using an arm bar to the upper shoulder area to attempt to prevent Mr. Madrid from moving. Defendant Lewis told Defendant Gurrola that he was going to apply the TASER to Mr. Madrid and that Defendant Gurrola should move away. Defendant Gurrola continued to hold Mr. Madrid‟s torso near the collarbone.
Mr. Madrid‟s head was pointing west and turned sideways, with his left cheek repeatedly rising off the ground until the officers‟ efforts caused him to go back down. Mr. Madrid tried to push his body up off the ground about 3-4 times over about 5-10 seconds. Defendant Lewis used his hand to push down on Mr. Madrid‟s back.
Approximately 10-15 seconds after Defendant Valdez arrived, Defendant Lewis knelt beside Mr. Madrid‟s left side. Defendant Lewis removed his department-issued TASER, discarded the cartridge that contained probe darts and applied the TASER in a contact or drive stun mode two to four times to the exposed upper right side of Mr. Madrid‟s back. On each occasion Defendant Lewis pulled the TASER off before it completed the device‟s five second cycle.
Defendant Lewis pushed his 12-15" long, 1" wide Ultra Singer flashlight into Mr. Madrid‟s back near his kidney, the same area he had applied the TASER, 2 to 3 times. Defendant Lewis then placed his knee on the ground and struck Mr. Madrid with the flashlight in a downward motion 3 to 4 times in the same general area. Defendant Lewis then applied a single blow to Mr. Madrid with a closed fist on the right cheek of his face. Mr. Madrid did not release his hands. Defendant Lewis activated the TASER on Mr. Madrid again. At one point during the TASER‟s activation, Defendants Lewis and Valdez were accidentally tased and Defendant Gurrola felt the electric current pass through Mr. Madrid and to him.
Defendant Gurrola was facing downward with Mr. Madrid on the ground when Defendant Mendoza and Officer Alvarado arrived. After approximately another 30-45 seconds of struggling, Defendant Mendoza pulled Mr. Madrid‟s arms from underneath him. Handcuffs were applied to Mr. Madrid, during which time Defendant Gurrola heard Mr. Madrid say, "Kill me, kill me."
Mr. Madrid was still moving around and kicking after his hands were handcuffed. Mr. Madrid‟s thighs came off the ground. Defendant Bell placed his knee on Mr. Madrid‟s legs near the calves, and Defendant Bell‟s hands braced on Mr. Madrid‟s legs. In response, Defendant Valdez applied his shin as a wedge against the right side of Mr. Madrid‟s lower back area, over the top of his waist at about a 45-degree angle. Defendant Mendoza employed a similar wedge position against the upper-mid back of Mr. Madrid, with his shin at a 45-degree angle relative to the ground and his knee over the approximate center of the left side of Mr. Madrid‟s back in a similar crouch position. Sergeant DeJong saw a crouching officer place his knee on Mr. Madrid‟s torso for about 10-15 seconds until Defendant Bell applied a hobble restraint on Mr. Madrid‟s legs. The hobble was too tight, and was reapplied. After the hobble was connected to the handcuffs, the officers stood up.
Defendants Valdez and Mendoza rolled Mr. Madrid to the side and noticed that his face was pale or bluish in color. Officer Alvardado retrieved a red medical box from a police unit and Officer Bailey began CPR. Officer Alvarado applied the air bag to Mr. Madrid. Fire personnel arrived on the scene and took over the CPR. Defendant Lewis advised Sergeant DeJong that he had applied the TASER in contact/drive-stun mode on Mr. Madrid. An ambulance was called to treat Mr. Madrid for the TASER applications, as per standard procedure.
Mr. Madrid was pronounced dead on January 12, 2007.
The Fresno County Coroner‟s Report made the following findings:
I. Blunt impact to the head with
a. Abrasions to the left side of the forehead.
b. Abrasions to the left upper eyelid.
II. Blunt impact to the trunk with
a. Three pairs of patterned abrasions to the right side front of chest as well as to the right side of the back.
b. Multiple abrasions to the back.
III. Blunt impact to the extremities with
a. Multiple abrasions to the back of the left elbow and left wrist.
b. Abrasions to the back of the right elbow.
c. Multiple abrasions on the outer aspect of the right knee as well as the front of the left knee.
d. Multiple abrasions to the front of the right leg. All the abrasions show partial healing.
Doc. 61, Ex. W, 8. The coroner opined that the cause of death is "pulmonary arrest during restraint in a person under the influence of Methamphetamine" and determined that "[a]sphyxia being a contributing mechanism cannot be ruled out." Doc. 61, Ex. W, 8-9.
According to the coroner‟s report, Mr. Madrid was 5‟7" tall and weighed 184 pounds. On the date of the incident, Defendant Bell was 5‟11" tall and weighed approximately 235 pounds; Defendant Gurrola was 5‟6" tall and weighed approximately 165 pounds; Defendant Lewis was 5‟8" tall and weighed approximately 170 pounds; Defendant Valdez was 5‟7" tall and weighed approximately 160 pounds; and Defendant Mendoza was 5‟7" tall and weighed approximately 175 pounds.
Sergeant Dejong initiated a use of force investigation with Sergeant Maguire. Sergeant Maguire questioned the officers about the incident. Sergeant Maguire did not personally observe any part of the struggle between Defendants Gurrola, Bell, Lewis, Valdez, and Mendoza (collectively, "Officer Defendants") and Mr. Madrid.
The City of Fresno Police Department has policies and procedures regarding: 1) use of force regarding TASERs; 2) issued and optional equipment; 3) subjects under the influence of drugs; 4) restraint procedures; 5) handling and evaluation of mentally ill persons; 6) training regarding positional asphyxia and the handling of § 5150 subjects; and 7) training regarding the reasonable use of force regarding electronic weapons such as a TASER. Officer Defendants all received training in accordance with Fresno Police Department policies.
The City of Fresno Police Department‟s Roll Call Training Bulletin on Positional Asphyxia provides in pertinent part:
Positional asphyxia usually occurs during arrest situations where a violent often times combative subject is taken into custody. Due to their violent nature, most subjects arrested during these encounters are placed on their stomachs, to reduce their ability to kick and injure officers, and to facilitate handcuffing. After handcuffing, the subjects [sic] handcuffs are then attached to a hobble which has been placed around the subjects [sic] ankles.
Asphyxia occurs when the body‟s heart-rate and breathing become rapid due to the struggle. The subject is placed on their stomach, and the stretching of the subjects [sic] midsection due to the hobble, restricts their ability to breath [sic]. Positional Asphyxia is not new. It can occur at any time and some people are predisposed to this condition. Several factors to be aware of are:
(b) Drugs and/or alcohol intoxication;
(c) Violent struggle extreme enough to require officers to employer a hobble; and
(d) Unresponsiveness of subject during or immediately after struggle.
Several cases have been documented where subjects have died due to positional asphyxia. During the resulting autopsy, the subjects were found to have drugs in their system, however the levels were not toxic and drug intoxication was ruled out as a cause of death. . . .
As soon as the subject is handcuffed, get him/her off their stomach.
In conclusion, officers who arrest a violent, combative person must protect themselves from further attack or possible injury. Using a hobble to restrain a subject‟s legs can cause an unintended physical reaction.
Defendants contend that during Officer Pack‟s encounter with Mr. Madrid, he suspected Mr. Madrid was under the influence of a controlled substance and/or possibly mentally ill. Defendants also contend that during the incident, Defendant Lewis suspected Mr. Madrid was under the influence of PCP or other controlled substance.
Defendants contend that during the incident, Defendant Bell feared Mr. Madrid might be hiding a weapon or firearm underneath his person; Defendant Gurrola feared Mr. Madrid might have a weapon in the front of his waistband or underneath his torso; Defendant Lewis feared Mr. Madrid was attempting to conceal a knife, rock, or other kind of weapon under his torso; Defendant Gurrola was afraid that Mr. Madrid had a firearm or knife underneath his person; and Defendant Bell feared that Mr. Madrid might be concealing a weapon.
Defendants contend that during the incident Defendant Officers were concerned that their position during the struggle placed them in danger of being hit by vehicles traveling south on Freeway 99.
After Defendant Gurrola was unsuccessful in placing a carotid hold on Mr. Madrid, Defendants contend that Defendant Gurrola was unable to apply any pressure on Mr. Madrid‟s neck. Pointing to Defendant Gurrola‟s police interview, Plaintiff contends that Defendant Gurrola‟s forearm was around Mr. Madrid‟s throat for a few seconds, then slipped down from Mr. Madrid‟s chin to his chest area, where it remained until Mr. Madrid was handcuffed and hobbled. Doc. 61, Ex. O, 3-5.
Defendants contend that no officer‟s body weight would have prevented Mr. Madrid from pulling his arm out from underneath his body. Plaintiff contends that the weight of the officers on top of Mr. Madrid prevented him from pulling his arms from underneath him to comply with Officer Defendants‟ requests. In his police deposition, Defendant Gurrola states that his arm was under Mr. Madrid‟s body and he could not remove it due to the weight of the officers on top of him. Doc. 61, Ex. H, 36.
Defendants contend that during the incident Mr. Madrid continued to struggle against the officers by locking his hands underneath his torso, refusing to obey commands to put his arms behind his back, flailing his body from side to side and up and down in push-up like movements, and lifting his upper body completely away from the ground, as if he was trying to get up and get away. Plaintiff contends that Mr. ...