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Maureen Abston, Individually, and As Personal Representative v. City of Merced

May 24, 2011

MAUREEN ABSTON, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RICHARD ABSTON; COREY ABSTON; JACY ABSTON;
LINDA ABSTON,
PLAINTIFFS,
v.
CITY OF MERCED, A MUNICIPAL CORPORATION;
RUSS THOMAS, IN HIS CAPACITY AS SHERIFF FOR THE CITY OF MERCED; J. HART, INDIVIDUALLY AND IN HIS CAPACITY AS A POLICE OFFICER FOR CITY OF MERCED; B. DALIA, INDIVIDUALLY, AND IN HIS CAPACITY AS A POLICE OFFICER FOR THE CITY OF MERCED; N. ARELLANO, INDIVIDUALLY AND IN HER CAPACITY AS A POLICE OFFICER FOR THE CITY OF MERCED; S. KESNEY, INDIVIDUALLY; 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, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION. (DOC. 44)

I.INTRODUCTION

Maureen Abston, individually, and as personal representative of the Estate of Richard Abston, Corey Abston, Jacy Abston, and Linda Abston ("Plaintiffs") proceed with this action against the City of Merced, Sheriff Russ Thomas, Officer Jason Hart, Officer Bernard Dalia, and Officer Naomi Arellano ("Defendants")*fn1 alleging (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) negligence -- wrongful death; and (4) negligent hiring, retention, training, supervision, and discipline.*fn2 Before the court is Defendants' Motion for Summary Judgment, or in the Alternative, Summary Adjudication (Doc. 44). Plaintiffs filed an opposition (Doc. 51), to which Defendants replied (Doc. 54).

II.FACTUAL BACKGROUND

A.Undisputed Facts

1.The Incident

On the morning of February 7, 2008, Officer Hart was stopped in traffic on the Childs Avenue overpass above Highway 99 in the City of Merced. Defendants' Statement of Undisputed Facts ("DUF")

¶ 1. Officer Hart was wearing a black polo shirt with an embroidered Merced Police Department badge, khaki-colored cargo pants, and a red baseball cap. DUF ¶ 2.

While stopped on Childs Avenue, Officer Hart observed a silver or gray pickup truck traveling southbound at a high rate of speed in a northbound lane of Highway 99. DUF ¶ 3. He subsequently learned that decedent Richard Abston ("Decedent") was driving the pickup truck. DUF ¶ 4. The pickup truck stopped on the median of the highway. DUF ¶ 5. Officer Hart initiated his vehicle's emergency lights, exited traffic and pulled onto an island on the on-ramp to the highway. DUF ¶ 6.

California Highway Patrol ("CHP") Officer Shane Kensey was assigned to patrol Highway 99 in the Merced area that morning. DUF ¶ 7. While on the highway, Officer Kensey received a radio broadcast of a motorist driving the wrong way on Highway 99. DUF

¶ 8. At that time, he was approximately eight miles away from where the driver had been observed. DUF ¶ 9. Officer Kensey began proceeding northbound on Highway 99. DUF ¶ 10. As he approached Martin Luther King, Jr. Way, Officer Kensey observed a silver pickup truck traveling southbound on northbound Highway 99 at approximately 35 to 45 miles per hour. DUF ¶ 12.

Officer Kensey, whose lights and siren were on, approached Decedent's vehicle, which slowed and pulled into the center median of the highway. DUF ¶ 13. Officer Kensey exited his vehicle and contacted Decedent through the driver's side door of Decedent's vehicle. DUF ¶ 14. Decedent was yelling something incomprehensible to Officer Kensey regarding his son being in a hotel and not able to breathe. DUF ¶15. Officer Kensey ordered Decedent to exit his vehicle four or five times, but Decedent did not comply. DUF ¶ 16. Officer Kensey opened the door, undid Decedent's seatbelt and pulled Decedent out of the pickup truck. DUF ¶17. Decedent resisted violently, swinging his arms and fists as he was being pulled out of the truck. DUF ¶18. Officer Kensey struck Decedent between two to five times in the thigh area with a side-handle baton, but it had no effect. DUF ¶¶ 19, 20.

Decedent began running southbound in the traffic lanes, roughly in the middle of the road. DUF ¶ 20. At that point, traffic was stopped on northbound Highway 99. DUF ¶ 21. Officer Kensey pursued Decedent, who started to climb up the cab of a stopped tractor trailer. DUF ¶ 22.

Officer Hart exited his vehicle. By the time Officer Hart reached the lanes of traffic, Decedent had climbed on top of a tractor trailor's cab. DUF ¶ 23. Officers Kensey and Hart gave verbal commands to Decedent to come down from the truck. DUF ¶

24. Officer Kensey sprayed pepper spray into Decedent's face in multiple bursts until his entire, relatively large can of spray was empty. DUF ¶ 25. Officer Kensey asserts that the pepper spray had no effect on Decedent. DUF ¶ 26. Decedent wiped the spray from his chest and licked it off of his fingers. DUF ¶ 27.

At approximately the time Decedent climbed onto the cab of the tractor trailer, Officer Arellano arrived at the scene. DUF ¶

28. She had responded to a dispatch call regarding a vehicle traveling in the wrong direction on Highway 99. DUF ¶ 29. All three officers climbed onto the cab of the tractor trailer. DUF ¶

30. Decedent lay on top of the cab. DUF ¶ 31. The officers grabbed hold of Decedent and attempted to pull him down. DUF ¶

32. Decedent first passively resisted their attempts, and then began resisting actively, flailing his arms. DUF ¶ 33. Officer Hart asserts that Decedent was very strong. DUF ¶ 34.

Decedent was not wearing a shirt by the time he was on the cab of the tractor trailer. DUF ¶ 37. Officers Hart and Kensey testified that they believed Decedent may have been under the influence of an intoxicating substance such as alcohol and/or methamphetamine, due to the glazed look in his eyes, his fidgeting, his extreme strength, and his tolerance to pain. DUF ¶ 40.

After reaching the ground from the cab of the tractor trailer, Decedent began running southwest on Highway 99 again, toward the center divider. DUF ¶ 41. A metal barrier approximately three to four feet high was on the median, separating the northbound from southbound lanes of traffic. DUF ¶

42. Officer Hart pursued Decedent on foot. DUF ¶ 43. Officer Hart testified that he was concerned that Decedent might cross the median into southbound traffic on Highway 99, which was still moving. DUF ¶ 44.

Officer Hart testified that he continued to tell Decedent to stop. DUF ¶ 45. Officer Hart drew his X26 Taser and told Decedent once that he would tase him. DUF ¶ 46. Decedent did not stop. DUF

¶ 47. Officer Hart deployed his Taser at Decedent from eight to twenty feet away; the Taser darts struck Decedent in the upper back and lower back. DUF ¶¶ 48, 49. Decedent immediately fell to the ground. DUF ¶ 50. Officer Hart testified that after the first Taser cycle of five seconds, Decedent attempted to get up. DUF ¶

51. Officer Hart testified that he told Decedent to get back down and put his hands behind his back or he would be tased again. DUF

¶ 52. Officer Hart testified that Decedent began to crawl. DUF ¶53.

Officer Hart began wrestling with Decedent. DUF ¶ 55. Officers Kensey and Arellano arrived. DUF ¶ 56. Officer Kensey testified that Decedent was lying on his stomach, with his hands clasped underneath his chest. DUF ¶ 57. Officer Kensey ordered Decedent to comply. DUF ¶ 58. Officer Kensey testified that Decedent was violently resisting: kicking, yelling and screaming. DUF ¶ 59. All three officers attempted to subdue Decedent, with Officer Kensey toward his head, Officer Hart near his mid-section and Officer Arellano at his feet. DUF ¶ 60. Decedent continued to resist, and banged his head on the pavement. DUF ¶ 61.

Officer Hart warned Decedent that he would be tased again. DUF ¶ 62. He deployed the Taser for another five-second cycle near Decedent's left shoulder blade. DUF ¶ 63. Officer Hart believes that he applied the Taser a fourth time, also for a five-second cycle. DUF ¶ 64. Officer Hart testified that because Decedent was so strong, the officers were still unable to gain control of his hands. DUF ¶ 65. Officer Kensey was eventually able to free one of Decedent's arms and apply a handcuff to it.

DUF ¶ 66. The officers handcuffed Decedent in front to gain custody of his hands. DUF ¶ 67.

Officer Dalia responded to Officer Hart's radio call that someone had been tased. DUF ¶ 68. The officers attempted to gain control of Decedent's legs. DUF ¶ 69. Officers Hart and Kensey testified that Decedent continued to kick violently. DUF ¶ 70. One kick struck Officer Arellano. DUF ¶ 71. As Officer Hart attempted to gain control of Decedent's legs, Decedent kicked him hard in the right shoulder, resulting in a torn rotator cuff that later required surgery. DUF ¶ 72. Officer Dalia attempted to help Officer Hart keep Decedent down, while Decedent was kicking and squirming. DUF ¶ 73. Decedent kicked at Officer Dalia, pushing him backward with enough force to jolt him. DUF ¶ 74.

California Department of Corrections ("CDC") Officer Rowdy Kyle approached the officers and asked if they needed a leg restraint. DUF ¶ 75. Officer Hart testified that he held Decedent's head in place so that Decedent could not strike anyone with his head while the leg shackles were being placed on him. DUF ¶ 76. Officers Hart and Arrellano testified that the officers did not strike Decedent, but attempted to hold him in place. DUF ¶ 77.

Other CHP officers arrived at the scene, relieving the Merced police officers. DUF ¶ 78. Officer Dalia checked Officer Hart's injury while CHP officers remained with Decedent. DUF ¶ 79.

Derrick Olzack, paramedic with Riggs Ambulance service, was dispatched to the scene. DUF ¶ 80. When he arrived, he was directed to Decedent, who was struggling with the officers attempting to restrain him. DUF ¶ 81. Mr. Olzack helped to push Decedent's hips down to keep him on the ground. DUF ¶ 82. At some point after he was restrained, Decedent appeared to stop breathing. DUF ¶ 83. After Decedent was placed in handcuffs and leg shackles, Officers Hart and Dalia assisted CHP officers and Mr. Olzack in pinning Decedent down against his further resistance. Officers Hart and Dalia left the situation to the CHP officers and Mr. Olzack at least two minutes before Mr. Olzack rolled Decedent over to perform an assessment. DUF ¶ 84. Decedent died shortly following the incident.

A bystander, Joe Spivey, captured video footage of the incident, although it is unclear how much of the incident he captured. DUF ¶ 36.

2.Defendant Officers‟ Training

Officer Hart received basic Taser training at the POST (Commission on Peace Officer Standards and Training) Academy, as provided by the Anaheim Police Department, at some time between 2004 and 2007. DUF ¶ 85. When he was hired by the Merced Police Department in 2007, Officer Hart received some additional basic training, including Taser training. DUF ¶ 86. Officer Hart received pain-compliance training for people under the influence of methamphetamine or other drugs. DUF ¶ 87. Officer Hart had been trained to avoid deploying a Taser to the head, neck or groin areas, as well as to areas of pre-existing injuries. DUF ¶ 89.

Officer Dalia attended police academy and other training from 1994 to 1996. DUF ¶ 90. He received updated annual training through the Merced Police Department. DUF ¶ 91. Before this incident, he had been trained once in the use of a Taser through the Merced Police Department. DUF ¶ 92.

Officer Arellano was trained in the user of a Taser through the Merced Police Department in approximately 2005. DUF ¶ 93.

B.Disputed Facts

1.The Incident

Officer Kensey testified that traffic is typically moderate to heavy around the area of Martin Luther King Way around the time of day the incident occurred, flowing between 60 and 65 miles per hour. Doc. 47, Ex. D, 22. Plaintiffs point to Joe Spivey‟s deposition, where he described traffic at the time of the incident as "moderately light. No heavy traffic."

Pointing to Officer Kyle's deposition, Plaintiffs assert that Officer Kyle stopped his car, got out and observed a physical altercation between Officer Kensey and Decedent, where they were both throwing blows at one another-Decedent with his hands and Officer Kensey with his baton. Doc. 53, Ex. B, 8-9, 21- 22. Decedent then turned and started running away. Officer Kensey chased after him and tackled Decedent, causing both of them to fall to the ground. Id. at 9, 23-24. The men struggled while on the ground. Officer Kensey had a grip on Decedent who tore out of his shirt in his attempt to be freed from Officer Kensey's grasp. Id. at 10-11, 22-23. Plaintiffs assert that Officer Kensey testified that at some point during the encounter Decedent had his shirt off but did not recall how he came to be topless and did not testify to tackling Decedent to the ground. Doc. 53, Ex. A, 17.

Plaintiffs assert that Decedent had an obvious 9-inch well-healed scar on his chest, where he had had open heart surgery and a pacemaker implanted two years before the incident. Defendants contend that Officer Hart and Officer Kensey did not notice a scar on Decedent's chest when he was shirtless on the hood of the truck. DUF ¶ 38. Plaintiffs point to Officer Kensey's police interview, in which Officer Kensey states that Officer Arellano told the officers she observed that Decedent had a large scar on his chest and told them not to use a Taser on him. Doc. 53, Ex. E, ¶ 9. Officer Arellano testified that she did not recall giving this warning or ...


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