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Beth Atkinson; and Kurt Brackob v. County of Tulare; Detective William Seymour; and Does 1-10

May 18, 2011

BETH ATKINSON; AND KURT BRACKOB,
PLAINTIFFS,
v.
COUNTY OF TULARE; DETECTIVE WILLIAM SEYMOUR; AND DOES 1-10, INCLUSIVE, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION; PLAINTIFFS' JOINT COUNTER-MOTION FOR SUMMARY ADJUDICATION OF ISSUES; AND DEFENDANTS' EX PARTE APPLICATION. (DOCS. 41, 48, 54-3)

I.INTRODUCTION

Plaintiffs Beth Atkinson and Kurt Brackob ("Plaintiffs") proceed with this action against Defendants County of Tulare ("Defendant County"), Detective William Seymour ("Defendant Seymour"), and Does 1-10 (collectively, "Defendants"), alleging (1) civil rights violations pursuant to 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the Constitution; (2) failure to provide medical care; (3) negligence; and (4) battery.

Before the court are: Defendants‟ Motion for Summary Judgment/Adjudication (Doc. 41); Plaintiffs‟ Joint Counter-Motion for Summary Adjudication of Issues (Doc. 48); and Defendants‟ Ex Parte Application (Doc. 54-3).*fn1 Plaintiffs filed a supplemental opposition (Doc. 59), to which Defendants replied (Doc.61).

II.FACTUAL BACKGROUND

A.Undisputed Facts

1.The Incident

On September 12, 2008, Defendant Seymour, an eighteen-year veteran of the Tulare County Sheriff‟s Department, was assigned to the South End detective division. Defendants‟ Undisputed Material Facts ("DUMF"), Doc. 42, ¶¶ 1-2. Prior to the incident, Defendant Seymour had been investigating several burglaries and other crimes. DUMF ¶¶ 1-3.

Defendant Seymour was driving north on Highway 65 and saw Zachary Atkinson driving a motorcycle in the opposite direction. DUMF ¶ 8. The motorcycle caught his attention because it was similar to one that was reported stolen. DUMF ¶ 9. Defendant Seymour made a U-turn to follow Mr. Atkinson and eventually caught up with him. DUMF ¶ 10. Mr. Atkinson pulled into the turn lane to make a left turn onto North Grand Avenue. DUMF ¶ 11. Defendant Seymour was in an unmarked car, in plain clothes, and did not activate lights or sirens. DUMF ¶ 13. Mr. Atkinson stopped at the red light, then turned left onto North Grand Avenue while the light was still red. DUMF ¶ 14. Detective Seymour advised dispatch of his location and requested backup. DUMF ¶ 15. After the traffic signal changed to green, Detective Seymour turned left onto North Grand Avenue. DUMF ¶ 16.

Mr. Atkinson pulled off the road onto a dirt shoulder and came to a stop on the north side of the road. DUMF ¶ 17.

Detective Seymour pulled his vehicle onto the shoulder of the road and approached Mr. Atkinson. DUMF ¶ 18. Detective Seymour told dispatch he was stopped and updated his location. Plaintiffs‟ Additional Material Facts ("PAMF"), Doc. 54-1, ¶ 78. Detective Seymour thought that the backup units he had requested were on the way. PAMF ¶ 75.

Detective Seymour intended to just talk to Mr. Atkinson until additional units arrived. PAMF ¶ 79. Detective Seymour did not intend to arrest Mr. Atkinson by himself. PAMF ¶ 80. Defendant Seymour never told Mr. Atkinson that he was under arrest. DUMF ¶ 20; PAMF ¶ 86.

When he walked up to Mr. Atkinson, Detective Seymour identified himself as a peace officer and asked to see identification or registration documents for the motorcycle. DUMF ¶ 19. Mr. Atkinson responded that he had some papers. PAMF ¶ 83. In Detective Seymour‟s experience, people stopped on motorcycles sometimes have papers in their pockets. PAMF ¶ 84. Detective Seymour saw Mr. Atkinson reach into his left front pocket with his left hand. DUMF ¶ 21. Detective Seymour told Mr. Atkinson to keep his hands out of his pockets. DUMF ¶ 22. Detective Seymour never talked to Mr. Atkinson about the stolen motorcycle. PAMF ¶85.

Mr. Atkinson started the engine of the motorcycle and attempted to drive away. According to eyewitness Colby Harder, almost immediately after Mr. Atkinson began to drive the motorcycle, Detective Seymour initiated a "headlock." PAMF ¶ 97. Atkinson had moved the motorcycle a foot before Seymour applied the headlock. PAMF¶ 98.

From that time through Defendant Seymour‟s shooting of Mr. Atkinson, the facts are mostly disputed (see below).

Because of the strength Mr. Atkinson exhibited during Detective Seymour's physical struggle with him, Detective Seymour thought that Mr. Atkinson could be under the influence of a controlled substance. DUMF ¶ 33. After the struggle, Detective Seymour felt a significant pain in his side and right arm. DUMF ¶34. Detective Seymour later learned that either the muscle or tendon in his right bicep had snapped, requiring surgery and several months off work. DUMF ¶ 36.

Within ten to fifteen seconds following the second shots, Defendant Seymour called dispatch and requested an ambulance, which arrived within five to ten minutes. DUMF ¶¶ 50-51. Mr. Atkinson died of a single gunshot wound that entered his back and did not exit. PAMF ¶ 170. Mr. Atkinson also sustained two superficial gunshot wounds to the posterior left leg and on the right buttock. PAMF ¶ 174.

2.County Policies

The Tulare County Sheriff‟s Department ("TCSD") had numerous policies, practices and procedures in effect at the time of the incident. DUMF ¶ 53.

Policy 300 of the TCSD Policy Manual ("Manual") concerns the use of force. DUMF ¶ 53; Doc. 41, Ex. A. Section 300.2 of the Manual states that deputies may use force when it appears necessary, given the facts and circumstances perceived by the deputy at the time of the event, to effectively bring an incident under control. DUMF ¶ 53; Doc. 41, Ex. A. Section 300.2.5 of the Manual discusses carotid restraints and provides:

The proper application of the carotid restraint hold by a trained deputy may be effective in quickly restraining a violent individual [sic] however due to the potential for injury, the carotid restraint hold may only be applied under the following conditions: . . . The carotid restraint may only be used when the deputy reasonably believes that such a hold appears necessary to prevent serious injury or death to a deputy or other person.

Id. Section 300.3 of the Manual discusses deadly force applications and provides that a deputy may use deadly force to protect himself/herself or others from what he/she reasonably believes would be an imminent threat of death or serious bodily injury. DUMF ¶ 54; Doc. 41, Ex. A. Section 300.4 of the Manual outlines the procedures that deputies must follow after the use of physical force, including documenting the incident and notifying supervisors. DUMF ¶ 55; Doc. 41, Ex. A. Section 300.5 of the Manual discusses supervisor responsibility following a reported use of force and provides protocol for supervisors to follow after there has been a reported application of force, including investigating the incident and notifying superiors if it is determined that the application of force is not within policy. DUMF ¶ 56; Doc. 41, Ex. A.

Policy 302 of the Manual establishes a process to review the use of deadly force by deputies. DUMF ¶ 57; Doc. 41, Ex. B. Policy 304 of the Manual sets forth the department‟s shooting policy: Section 304.1.1 provides guidelines for the use of a firearm, and Section 304.1.4 addresses when, how, and to whom a report must be made regarding the discharge of a firearm. DUMF ¶ 58; Doc. 41, Ex. C. Policy 310 of the Manual establishes the procedures for investigating incidents in which a person is injured as a result of a police shooting: Section 310.5 addresses the investigation process and procedure, and Section 310.7 provides for an internal administrative investigation to determine conformance with departmental policy. DUMF ¶ 59; Doc. 41, Ex. D.

Policy 322 of the TCSD Policy Manual serves as a guideline for deputies in evaluating search and seizure issues. DUMF ¶ 60; Doc. 41, Ex. E.

Tulare County Sheriff‟s deputies are subject to the following training requirements: (1) graduation from a POST certified academy; (2) completion of an in-house orientation geared to teaching officers written policies and procedures, including use of force; (3) completion of an FTO program, a patrol training program designed to refine the training received at the academy pertaining to the law of arrests, searches and seizures, use of force, and other tactical considerations; and (4) completion of a minimum 24 hours of continuing POST certified education every two years, as required by POST. DUMF ¶¶ 61-63. In addition, training is performed at roll call briefings, which may cover significant recent appellate court rulings. DUMF ¶ 64. Supervisors provide ongoing training in terms of continuing observations of the performances of subordinates, and providing performance evaluations and/or corrective training as needed. DUMF ¶65.

B.Disputed Facts

It is disputed whether Mr. Atkinson was a suspect in the burglaries Detective Seymour was investigating immediately before the incident. Defendants contend that Mr. Atkinson was a suspect in the burglaries. DUMF ¶ 2. Defendants contend that Detective Seymour had a description of the perpetrator, which fit the general description of Mr. Atkinson. DUMF ¶ 4. Defendants contend that Detective Seymour also received information that Mr. Atkinson was attempting to sell a stolen Harley-Davidson motorcycle and that Detective Seymour was provided with a detailed description of the motorcycle. DUMF ¶ 6.

Plaintiffs rejoin that Defendant Seymour‟s information tying Mr. Atkinson to the burglaries was vague, unreliable or fabricated to justify his use of excessive force. Pointing to Defendants‟ Response to Plaintiffs‟ Requests for Admission, Set One, § 3, Plaintiffs assert that Defendants admit they do not have any documents to support the contention that Mr. Atkinson was possibly involved in the theft of handguns. Doc. 50, Ex. H,4. Detective Seymour testified at his deposition that Detective Giefer told him that he had a telephone conversation with a person who "wanted to be a confidential informant for us," and said Mr. Atkinson was trying to sell him a motorcycle and some coins and jewelry. Doc. 49, Ex. A, 27. Detective Seymour did not remember when this conversation took place. Id. Detective Seymour does not remember what information he had that the motorcycle the confidential informant stated Mr. Atkinson was trying to sell was stolen. Id. at 29. Detective Seymour stated that the descriptions of the stolen merchandise "matched up to some extent" with information given to Detective Giefer, but he did not recall what those descriptions were. Id. at 29-30. Detective Seymour does not remember if there were any descriptions of the suspects or if anyone had been present when the items were stolen. Id. at 31. Detective Seymour stated that the only thing connecting Mr. Atkinson to the burglaries was that they were daytime burglaries in the same general area within the same time frame. Id. at 33. Detective Seymour states that Mr. Atkinson "possibly matched" the description of a white male in his 20s, 30s, and 40s involved in the robbery of marijuana plants involving a firearm. Id. at 33- 34. Plaintiffs' expert Richard Lichten opines that if Detective Seymour had an honest suspicion that Mr. Atkinson was involved in the burglary or robbery involving firearms, then the way he approached Mr. Atkinson was inconsistent with standard officer safety and standard police practices when confronting a possible armed felon. Doc. 51, ¶5.

Defendants contend that Detective Seymour was aware that Mr. Atkinson had a significant criminal history, including arrests involving violence against officers and resisting arrest. DUMF ¶ 5. Plaintiffs point to Detective Seymour's deposition testimony where he states that he ran Mr. Atkinson's name through a Tulare County local law enforcement database, and only knew about "some resisting arrest and some assaults-on-peace-officer" arrests, but he did not remember the year or disposition of any arrests. Doc. 49, Ex. A, 43-44. Detective Seymour testified that he could not remember whether Detective Lee stated that he had been injured in fights with Mr. Atkinson. Id. at 36.

Defendant Seymour claims that he had found a mug shot of Mr. Atkinson and printed it out. DUMF ¶ 7. Plaintiffs question the veracity of Defendant Seymour‟s statement because Defendant Seymour admitted that he did not know what happened to the mug shot or its current location. Doc. 50, Ex. G, 2.

After Mr. Atkinson attempted to drive off on his motorcycle, Defendants contend that Detective Seymour grabbed Mr. Atkinson with his left arm around Mr. Atkinson's head and neck and hit the "kill" switch to stop the motorcycle. DUMF ¶ 24. Pointing at Detective Seymour's and Colby Harder's deposition, Plaintiffs contend that Detective Seymour put Mr. Atkinson in a carotid restraint using both arms. Doc. 49, Ex. A, 176; Doc. 49, Ex. D, 31.

Defendants contend that Mr. Atkinson restarted the motorcycle and again attempted to drive off, moving the motorcycle five to fifteen feet with Detective Seymour holding on to him. DUMF ¶ 25. Defendants assert that Detective Seymour again hit the kill switch and shut off the motorcycle. DUMF ¶ 26. Plaintiffs point out that an eye witness, Mr. Hardy, never saw Detective Seymour reach with either of his hands towards the handlebar area of the motorcycle. Doc. 49, Ex. D, 64. Plaintiffs contend that there was only one movement of the motorcycle, not two, but their evidence does not support this contention.

Defendants contend that Detective Seymour and Mr. Atkinson both fell to the ground to the right side of the motorcycle. DUMF ¶ 27. Pointing to Detective Seymour's videotaped interview, Plaintiffs contend that they did not fall; rather, Detective Seymour pulled Mr. Atkinson off the motorcycle. Doc. 50, Ex. C.

Defendants contend that Mr. Atkinson fell on top of Detective Seymour. DUMF ¶ 28. Pointing to Mr. Atkinson's deposition, Plaintiffs contend that Detective Seymour testified that Mr. Atkinson fell to Detective Seymour's left (Doc. 49, Ex. A, 105) and that when they fell, their bodies were "side by side" (Id. at 109).

Defendants contend that while on his stomach, Detective Seymour felt movement on his right hip, where he kept his gun holstered. DUMF ¶ 29. Defendants contend that Detective Seymour looked down and saw Mr. Atkinson's hand on his gun, trying to take his gun from its holster. DUMF ¶ 30. Plaintiffs argue that it is possible the contact with Detective Seymour's gun never occurred. Mr. Harder witnessed the encounter, except for ten seconds, and stated that he did not see Mr. Atkinson make any movements of his body towards Detective Seymour. Doc. 49, Ex. D, 63. Pointing to Detective Seymour's Responses to Plaintiffs' Requests for Admission Set One, Plaintiffs argue that Detective Seymour did not deny that there were no fingerprints or DNA connecting Mr. Atkinson to his gun or holster; however, Defendants denied these requests for admission. Doc. 50, Ex. H, 5-7.

Defendants allege that Detective Seymour and Mr. Atkinson fought over Detective Seymour's gun, but Detective Seymour was able to gain control of it. DUMF ¶ 31. Plaintiffs assert that Mr. Atkinson never gained control of the gun and tried to pull his hand away while Detective Seymour was trying to keep his hand on his gun. Doc. 49, Ex. A, 112. Plaintiffs also state that Detective Seymour testified that he had a retention holster, which had a mechanism to lock the gun in place so it would not come out. Id . at 50-51.

Defendants contend that Detective Seymour did not know whether the sharp pain in his right side was because he had been punched, stabbed, or shot. DUMF ¶ 35. In Defendants' cited deposition testimony, Detective Seymour states that he did not know whether the pain in his right side was "from a punch or a stab or what that was." Doc. 49, Ex. A, 120. Plaintiffs assert that Detective Seymour conceded that he had just fallen to the ground and could have sustained the injury from the ground, the motorcycle's handlebars, or falling on a rock. Id. at 120, 177-178. Detective Seymour stated that he did not hear a gunshot, so he knew that he had not been shot. Id. at 152.

The parties dispute the facts of the shooting. Defendants contend that while Detective Seymour was conducting a mental inventory of his injuries, he realized that Mr. Atkinson had stood up and moved out of his line of sight. DUMF ¶ 37. Defendants contend that Detective Seymour then saw that Mr. Atkinson was standing within a few feet of him, and he had his left hand in his pocket. DUMF ¶ 38. Defendants contend that Detective Seymour raised up on his knee, drew his weapon, pointed it at Mr. Atkinson, and told him to put his hands up and to take his hands out of his pocket. DUMF ¶ 39. Defendants contend that Mr. Atkinson did not comply, but turned his back to Detective Seymour, and had his hand still in his pocket. DUMF ¶ 40. Defendants contend that Detective Seymour was aiming at Mr. Atkinson's hand and observed him making a movement like he was turning around. DUMF ¶ 41. Defendants contend that, fearful that Mr. Atkinson was trying to remove a firearm, turn around and shoot him, Detective Seymour fired. DUMF ¶ 42. Defendants assert that Detective Seymour did not know if the shot made contact (DUMF ¶ 43); that Mr. Atkinson moved out of Detective Seymour's line of sight, but came back into view within two or three seconds (DUMF ¶ 44); and that Detective Seymour thought that Mr. Atkinson, who was now five to fifteen feet away, was coming back to kill him. DUMF ¶ 45. Defendants argue that Detective Seymour stood up and pointed his weapon at Mr. Atkinson, who was facing away from him. DUMF ¶ 46. Aiming center mass at Mr. Atkinson's back, Detective Seymour could see Mr. Atkinson's left hand was still in his left front pocket. DUMF ¶ 47. Defendants contend that Detective Seymour believed Mr. Atkinson was starting to turn towards him to draw a firearm. Defendants maintain that Detective Seymour fired once or twice. DUMF ¶ 48. Defendants contend that Mr. Atkinson got on the ground and Detective Seymour covered him with his weapon until other deputies arrived on the scene to assist him. DUMF ¶ 49.

Plaintiffs' version of the shooting differs. Plaintiffs point to Detective Seymour's deposition testimony, where he states that when Mr. Atkinson first got off the ground, Mr. Atkinson did not say anything to Detective Seymour, did not verbally threaten him, did not attempt to charge or jump on top of Detective Seymour, and did not try to go after Detective Seymour's gun. Doc. 49, Ex. A, 125. Plaintiffs contend that Detective Seymour did not have time to conduct a "mental inventory" of his injuries and that immediately after Mr. Atkinson got up and started to sprint away, Detective Seymour rose to a shooting stance and shot Mr. Atkinson in the back. Doc. 49, Ex. B, 63; Doc. 49, Ex. C, 12-15. Heraclio Aguilar testified that Detective Seymour fired three shots in rapid succession, and that Mr. Atkinson started falling immediately after the first shot. Doc. 49, Ex. C, 13. Plaintiffs assert that eyewitnesses Mr. Harder and Manuel Escalera never saw Mr. Atkinson turn. Doc. 49, Ex. B, 69; Doc. 49, Ex. D, 74. Plaintiffs also point to Mr. Harder's deposition to contradict Defendants' contention that Mr. Atkinson ever had his hand in his left pocket. Doc. 49, Ex. D,40. Pointing to the deposition testimony of Mr. Escalera and Mr. Aguilar, Plaintiffs contend that Mr. Atkinson never stood stationary and Detective Seymour never told Mr. Atkinson to put his hands up and to take his hands out of his pocket. Doc. 49, Ex. B, 63; Doc. 49, Ex. C, 12-15.

II.LEGAL STANDARD

Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.P. 56.

The moving party bears the initial burden of "informing the district court of the basis for its motion, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation marks omitted). A fact is material if it could affect the outcome of the suit under the governing substantive law; "irrelevant" or "unnecessary" factual disputes will not be counted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505(1986).

If the moving party would bear the burden of proof on an issue at trial, that party must "affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9thCir. 2007). In contrast, if the non-moving party bears the burden of proof on an issue, the moving party can prevail by "merely pointing out that there is an absence of evidence" to support the non-moving party‟s case. Id.

When the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

In ruling on a motion for summary judgment, a court does not make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 255. Rather, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Fed. R. Civ. P. 56(e). "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun, 509 F.3d at 984.

III.ANALYSIS

A.Defendants' Motion for Summary Judgment/Adjudication

1.Plaintiffs' Standing

Defendants contend that Plaintiffs have not fulfilled the procedural requirements of California Civil Procedure Code §*fn2 377.32 and do not have standing to assert claims as successors in interest to Mr. Atkinson. In response, Plaintiffs filed the declaration of Mr. Brackob, Mr. Atkinson‟s father and successor in interest (Doc. 42), attaching (1) Mr. Atkinson‟s birth certificate listing Plaintiffs as Mr. Atkinson‟s parents (Doc. 42, Ex. A) and (2) Mr. Atkinson‟s death certificate (Doc. 42, Ex. B). Plaintiffs, Mr. Atkinson‟s parents, have satisfied the procedural standing prerequisites to ...


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