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Valetta Mcmurray v. County of Sacramento

October 4, 2011

VALETTA MCMURRAY, PLAINTIFF,
v.
COUNTY OF SACRAMENTO, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Defendants County of Sacramento, Sheriff John McGinness, Deputy Sheriff Javier Bustamante, Deputy Sheriff V. Candido, and Deputy Sheriff L. Culp move for summary judgment and/or summary adjudication. Dckt. No. 34. A hearing on the motion was held on May 11, 2011. Attorney Kristina Hall appeared at the hearing on behalf of defendants; plaintiff appeared pro se. For the reasons stated herein, the court recommends that defendants' motion be granted in part and denied in part.

I. BACKGROUND

Plaintiff initiated this action on August 10, 2009, alleging (1) a claim against defendants Bustamante, Candido, and Culp under 42 U.S.C. § 1983 for violation of her deceased son Damion McMurray's ("Damion") civil rights under the Fourth, Fifth, and Fourteenth Amendments; (2) a claim for violation of her own civil rights under the Fourteenth Amendment; (3) a claim against the County of Sacramento and Sheriff McGinness under § 1983 for supervisory and Monell liability; and (4) a wrongful death claim against all defendants pursuant to California Civil Procedure Code section 377.60. Compl., Dckt. No. 2.

Defendants move for summary judgment and/or summary adjudication on all of plaintiff's claims. Defs.' Mot. for Summ. J., Dckt. No. 34. With regard to the first claim, based on violations of Damion's rights, defendants argue that (a) Damion's Fifth Amendment due process claim fails because there are no federal government actions; (b) Damion's Fourteenth Amendment claim fails because it is more properly asserted as a Fourth Amendment claim; and (c) Damion's Fourth Amendment claim fails because the deputies' use of force was reasonable and the individual defendants are entitled to qualified immunity. Id. at 18-22, 23-26.*fn1 With regard to the second claim, based on violations of plaintiff's Fourteenth Amendment rights, defendants argue that (a) the claim fails as a matter of law, and (b) the individual defendants are entitled to qualified immunity. Id. at 22-23, 26-27. With regard to plaintiff's third claim against the County and Sheriff McGinness, defendants argue that (a) there is no causal link between Sheriff McGinnis and the alleged constitutional violations and (b) there is no evidence to support a Monell claim against the County of Sacramento. Id. at 27-29. Defendants also argue that plaintiff's fourth claim for wrongful death fails as a matter of law since the defendants are each entitled to immunity under the California Government Code. Id. at 30-31. Finally, defendants contend that there is no basis for plaintiff to seek punitive damages. Id. at 32-34. Plaintiff opposes the motion. Pl.'s Opp'n, Dckt. No. 39.

II. FACTS

This case involves the October 15, 2008 fatal shooting of plaintiff's son, Damion McMurray ("Damion"), by a Sacramento County deputy sheriff, as well as the use of a taser on Damion by another Sacramento County deputy sheriff, and the circumstances surrounding the entire incident. Although it is undisputed that the shooting and the use of the taser occurred, many of the facts surrounding the October 15 incident are disputed.*fn2

A. Defendants' Statement of Facts

According to defendants, early in the afternoon of October 15, 2008, Sacramento County Sheriff's Deputy L. Branden Culp responded to a call for emergency service at the Dry Creek Apartments in Rio Linda, California concerning a verbal dispute between neighbors, in which the caller complained that the son of one of her downstairs neighbors was cursing at her daughter. Defs.' Statement of Undisputed Material Facts ("UMF"), Dckt. No. 34-2, ¶¶ 1-3.*fn3

When Culp arrived at the apartment complex, he encountered an African-American adult female wearing a white shirt near the doorway of Apartment #2, which was a ground level apartment unit. Id. ¶ 4. The woman told Culp that she was the mother of the person causing the disturbance and apologized for his actions. Id. ¶ 5. It appeared to Culp that the woman was trying to resolve the situation with the neighbor who had called for service. Id. ¶ 6. Culp also saw an African-American adult male wearing a red shirt, who appeared to be the woman's son, but it was explained to Culp that this person was not the source of the dispute. Id. ¶ 7. Because it did not appear to Culp that the person who caused the confrontation was still on the premises, Culp cleared the call and left the scene. Id. ¶ 8.

Approximately 10 or 15 minutes later, Culp heard a second emergency call come in from the Dry Creek Apartments, pertaining to an African-American male subject, not wearing a shirt, who was acting "crazy" and hitting passing cars with his fists. Id. ¶¶ 9-10. The 911 call also indicated that the subject had a gun inside a sock and wanted to commit suicide. Id. ¶ 11.

Culp returned to the Dry Creek Apartments, and at approximately the same time, Sacramento County Sheriff's Deputy Javier Bustamante and his trainee Deputy Vincent Candido were also on patrol in the area. Id. ¶¶ 12-13. Bustamante and Candido received an emergency dispatch indicating that an African-American adult male, wearing blue jeans and no shirt, was running around in the street near the Dry Creek Apartments with a handgun in a sock and banging on the windows of passing cars, and indicating that the subject may be suicidal. Id.

¶¶ 14-15. Bustamante and Candido responded to the location of the call, and when they arrived on scene, Bustamante decided to bring his law enforcement rifle ("LER" -- a fully loaded M-16 semiautomatic rifle) due to the serious nature of the emergency call. Id. ¶¶ 16-17. Bustamante strapped the LER across his chest while he and Candido conferred regarding the best way to handle the situation. Id. ¶ 18.

Shortly after Bustamante and Candido arrived at the Dry Creek Apartments, Culp also arrived on scene. Id. ¶ 19. Culp suspected that the subject of this second emergency call might be the same person who caused the problems that resulted in his response to the apartment complex the first time, so he directed Bustamante and Candido toward Apartment #2. Id. ¶ 20.

The three deputies walked together toward the apartment complex, and as they approached the apartment, they heard male and female voices yelling. Id. ¶¶ 21-22. Culp saw the same woman in the white shirt and the man in the red shirt that he encountered during his response to the first call. Id. ¶ 23. The man in the red shirt was later identified as Arlandis McMurray ("Arlandis"), while the woman was later identified as his mother, Valetta McMurray (plaintiff). Id. ¶ 24. Arlandis and plaintiff were standing in the doorway of the apartment yelling and arguing with someone inside. Id. ¶ 25. A man with no shirt came all the way out of the apartment; he was waving his arms and yelling and screaming and had what appeared to be a black sock in one of his hands. Id. ¶¶ 26, 27. The man without a shirt was later identified as Damion McMurray ("Damion"). Id. ¶ 28. The deputies believed that Damion matched the description of the subject of the emergency call about a man who was acting crazy, not wearing a shirt and possibly carrying a gun in a sock. Id. ¶ 29.

Damion appeared to be talking on the phone. Id. ¶ 30. Bustamante and Culp tried to get control of the situation but the three people continued yelling and screaming. Id. ¶ 31. Culp finally told Arlandis to walk toward him and turn around to be handcuffed. Id. ¶ 32. Initially, Arlandis hesitated but eventually complied. Id. ¶ 33. Culp took Arlandis to a location to sit just out of sight around the corner near a stairwell. Id. ¶ 34. Plaintiff continued to yell and scream and told Damion to get off the phone. Id. ¶ 35.

Bustamante told Damion numerous times to put the phone down and comply so that he could be placed in handcuffs and the deputies could determine what was going on. Id. ¶ 36. Plaintiff tried to grab the phone away from but it dropped to the ground and Damion ran toward the apartment. Id. ¶ 37. Bustamante tried to grab Damion as he went into the apartment but was unable to get hold of him. Id. ¶ 38.

The deputies momentarily lost sight of Damion when he disappeared into the apartment. Id. ¶ 39. The deputies feared that Damion might be going inside to get a weapon in light of the nature of the call that had brought them to the apartment complex. Id. ¶ 40. The deputies were fearful because they did not know what or who may have been inside the apartment. Id. ¶ 41.

Culp then ran toward the door to follow Damion. Id. ¶ 42. Damion was immediately inside the doorway. Id. ¶ 43. Culp deployed his taser weapon in the hope that it would end the confrontation and gain Damion's compliance.*fn4 Id. ¶ 44. Both prongs of the taser hit Damion and he fell on the floor and laid on his stomach. Id. ¶ 45. Bustamante was standing near the doorway outside the apartment and he and Culp both directed Damion to put his hands behind his back so that he could be handcuffed. Id. ¶ 46. Damion seemed to comply but then he suddenly put his hands up underneath him, pushed himself up off the floor and jumped in front of Culp and toward Bustamante, who was standing near the doorway. Id. ¶ 47. Bustamante tried to jump out of Damion's path, but Damion ran toward him. Id. ¶ 48. Culp chased Damion, who still had the taser barbs connected to his body, and initiated a second taser burst to try to control him. Id. ¶ 49. The second taser burst had very minimal effect. Id. ¶ 50. Damion fell to the ground and laid there for only a few seconds. Id. ¶ 51.

Culp again directed Damion to put his hands behind his back and comply with the commands of the deputies, but Damion refused to comply. Id. ¶ 52. Suddenly, Damion jumped up again and rushed toward Bustamante. Id. ¶ 53. Culp deployed the taser a third time, but it had no effect at all. Id. ¶ 54.

Damion wrapped his arms around Bustamante, causing there to be very close bodily contact with Bustamante. Id. ¶ 55. Culp concluded that he could not use the taser again because he feared that the taser could affect Bustamante due to the bodily contact between Damion and Bustamante. Id. ¶ 56. The contact between Damion and Bustamante also greatly concerned all three deputies because of the difference in physical size between Damion and Bustamante. Id.

¶ 57. Damion was approximately 6'7" and weighed approximately 200 lbs., while Bustamante is about 5'7" and weighs approximately 170 lbs. Id. ¶ 58. As Damion had his arms wrapped around Bustamante, Bustamante tried to keep his LER weapon out of Damion's reach. Id. ¶ 59. Bustamante suddenly felt Damion tugging on his belt and holster and immediately recognized that Damion was actively trying to take away his service pistol. Id. ¶ 60. In accordance with his training, Bustamante tried to push Damion off, while Candido ran over to the altercation and tried to pull Damion off of Bustamante; Candido's efforts to pull Damion away were unsuccessful because of the significant advantage in physical size and strength that Damion had. Id. ¶ 61. At the same time, Bustamante attempted to release the safety hood on his security holster so that he could gain access to his service pistol because he believed that the escalating degree of Damion's physical contact was most likely going to warrant utilizing his firearm. Id.

¶ 62. When Bustamante went to release the safety hood on his security holster, he realized that it had already been released. Id. ¶ 63. Bustamante was alarmed because this fact confirmed to him that Damion definitely had tried, and was continuing to try, to take away his fully-loaded pistol in the course of the physical struggle. Id. ¶ 64. Bustamante immediately realized that there was no way that he could protect the LER strapped to his chest, his service pistol and continue to properly fight off Damion's advances all at the same time. Id. ¶ 65. Bustamante was able to slightly push away from Damion with his left hand while simultaneously drawing his weapon, a .40-caliber Sig Sauer pistol, with his right hand. Id. ¶ 66. Pursuant to Sheriff's Department regulations, Bustamante's pistol was loaded with thirteen rounds of ammunition. Id. ¶ 67. Despite Bustamante's attempts to push away from Damion, the two men were still very close to each other, less than arm's length apart. Id. ¶ 68. Damion showed no signs of ceasing his attack or complying with the officers' directives. Id. ¶ 69.

Bustamante was fearful that if Damion overpowered him, he could take away one or both of his loaded weapons and harm or possibly kill him, the other deputies and others nearby. Id. ¶ 70. In extreme fear for the safety of the other deputies, nearby citizens and himself, Bustamante believed he had no other choice but to use his weapon as a means of force against Damion. Id. ¶ 71. Bustamante fired two rounds from his pistol, hitting Damion in the center mass, and again tried to push away from Damion. Id. ¶ 72. Only after Bustamante had fired the two rounds did Damion finally release him. Id. ¶ 73. Bustamante backed up with his weapon still drawn and observed Damion to determine whether he needed to continue utilizing force against him or whether he should stop. Id. ¶ 74. Damion sat back on the ground while Bustamante continued to cover him with his drawn pistol; Bustamante did not fire any additional rounds because Damion was no longer actively attacking him. Id. ¶ 75. Bustamante and Culp both called for back-up assistance to respond to the scene and for emergency medical care for Damion. Id. ¶ 76. Damion ultimately died from the injuries he sustained as a result of the gunshot wounds. Id. ¶ 77.

B. Plaintiff's Statement of Facts

Plaintiff's opposition to the summary judgment motion, which she labels as a "motion against summary judgment," is actually a narrative statement by plaintiff that begins with the phrase "I Valetta McMurray declare as follows:." Dckt. No. 39. The document is essentially Ms. McMurray's declaration that includes her description of what she claims to have witnessed just prior to and at the time of the shooting. However, the statement lacked a verification clause stating that it was submitted under penalty of perjury. At oral argument plaintiff was provided an opportunity to resubmit her declaration under penalty of perjury. Thereafter she submitted her corrected declaration and the declaration of Shirley Lee, both of which are verified as submitted under penalty of perjury.*fn5 Dckt. No. 42. Additionally, plaintiff's opposition has attached to it her response to defendants' statement of undisputed material facts, which includes additional factual assertions by plaintiff.*fn6 See Dckt. Nos. 39, Attach. 1. Collectively, these documents assert the following version of what occurred, which stands in stark contrast to defendants' account of the events.

According to plaintiff, on October 15, 2008, she and her two sons were at her residence, Rio Garden Apartments, in Rio Linda, California. Pl.'s Decl., Dckt. No. 42, at 2. Damion had begun doing his laundry and Arlandis was waiting to pick his son up from school. Id. The three of them were having a conversation about the loss of plaintiff's sister's only child just two weeks prior to Damion arriving home. Id. Damion was emotional over the death of his cousin and was upset that he was not able to be with his family at the time of his cousin's death. Id.

Damion then stepped outside and walked over by the end of the walkway by the stairs. Id. By this time, a young lady that lived in the upstairs apartment, apartment 12, walked up to the walkway and told Damion to move. Id. Damion told her to go around him and that he was not in the way. Id. Walking up the stairs, the young woman said "fuck you" to Damion for not moving, and in response Damion said "fuck you" back. Id. Plaintiff then told Damion that his conduct was unnecessary. Id. Damion then went back inside the house. Id.

Arlandis and plaintiff then went upstairs to apologize to the young lady. Id. When they got upstairs, Arlandis knocked on the door and after a minute or two, the door opened and it was an elderly lady that answered. Id. Plaintiff told the lady that she lived downstairs and that she came to apologize for Damion, who was upset over the death of a family member. Id. The lady replied by saying that her daughter was not home at the moment and that she would be the one to apologize to. Id.

By this time, Officer Culp arrived. Id. As Culp headed upstairs, he first encountered Arlandis. Id. Arlandis told the officer that he and plaintiff just went upstairs to apologize. Id.

Culp said that they seemed to have the situation under control and then left. Id.

Arlandis and plaintiff then went back downstairs and entered the house. Id. Damion was standing by the washer waiting for it to stop. Id. Plaintiff could see that he was upset and suggested that they watch a movie. Id. Damion agreed. Id. As plaintiff then proceeded to get the movie, Damion began to rap lyrics to a rap song and began to ad lib. Id. Plaintiff then sat her chair next to the chair Arlandis was seated in, and she and Arlandis sat and listened to Damion rap. Id. Arlandis stated that he was going to go to the store, which was located next door, and plaintiff replied with a simple "O.K." Id.

Damion continued to rap the songs a few seconds more and then both he and plaintiff walked outside. Id. As they stood outside, they had a conversation "about things of the heart." Id. After the conversation, they both went back into the house. Id. Plaintiff sat down and Damion went toward the bathroom as Arlandis returned from the store. Id. Damion came back into the living room and, after scanning the room, picked up his black socks and walked toward the door and went outside. Id.

Plaintiff continued to sit in the chair, and a few minutes later, she heard Damion's voice, so she got up and went to the door to see where he was. Id. When plaintiff stepped outside, she saw Damion across the street walking. Id. Damion was also talking, but plaintiff could not understand him clearly. Id. Plaintiff then told Arlandis to get his brother and Arlandis walked in the direction that Damion was heading. Id. Arlandis was calling his name. Id.

Plaintiff went back inside the house and called her sister, Shirley Lee. Id.; see also Decl. of Shirley Lee, Dckt. No. 42 at 5.When Shirley answered, plaintiff said her name and Shirley asked her what was wrong. Pl.'s Decl. at 2. Plaintiff told Shirley to pray. Id. Plaintiff told Shirley that she and Damion were talking about Damion's cousin, that Damion became overwhelmed with emotion, and that Damion was outside. Id. Shirley asked plaintiff who was there and plaintiff told her it was plaintiff and Arlandis. Id. Shirley then told plaintiff to tell Arlandis to take Damion with him to get his mind off of everything. Id. By this time, Damion and Arlandis had walked over to Arlandis's car and they stood there talking. Id. at 2-3.

A few minutes later, Damion and Arlandis went inside the house. Id. at 3. Plaintiff was still on the phone with Shirley and she wanted to speak to Arlandis so she could tell him to take Damion with him. Id. Damion was looking around for his other sock because he thought that he had dropped it. Id. He walked outside to see if he did, but he could not find it. Id. When Damion came back in the house, he asked plaintiff if she had seen his other sock. Id. Plaintiff said no, but as she moved from her seat, it was behind her. Id.

Arlandis called Damion and handed him the phone because Shirley wanted to speak with Damion. Id.; Lee Decl. at 5. Damion took the phone and said hello, and from then on, he was quiet because he was listening to what she was saying. Pl.'s Decl. at 3; Lee Decl. at 5. Then, all of a sudden, Damion said, "I know my God loves me." Pl.'s Decl. at 3; Lee Decl. at 5.

Shortly after that, plaintiff saw three police officers walking up to the apartment with their guns drawn. Id. Plaintiff looked at Arlandis and he looked at plaintiff. Id. Both plaintiff and Arlandis got up at the same time and walked over to the door. Id. Plaintiff opened her screen door, and Arlandis stood to the left of her. Id. Both plaintiff and Arlandis were standing in the doorway. Id. Arlandis then said, "officers, we don't have anything, let me show you." Id. He put one hand in the air, and with the other, he slowly pulled up his shirt and stepped forward to turn around to show them he did not have anything. Id. Culp then grabbed Arlandis and put him in handcuffs and rushed him over by the stairs. Id.

By this time, Damion walked up behind plaintiff and was still on the phone. Id. While Shirley was praying very loudly on the phone with Damion, she heard Damion ask, "What is wrong with these people?" Lee Decl. at 5. The officers yelled to put the phone down, but Damion just stood there with the phone still to his ear as he looked outside. Pl.'s Decl. at 3.

Plaintiff also states in response to defendants' statement of undisputed facts, that Damion was on the phone with his aunt and was listening to what she had to say; he was not yelling or screaming. Pl.'s Resp. to UMF, Dckt. No. 39-1, ¶ 27. She further contends that there was no sock in Damion's hand, and certainly no gun, just a phone, and that Damion was not waving his sock as defendants contend. Id. ¶¶ 29-30. She adds that "[t]here was no control to regain" since plaintiff and Damion "were doing what [they] could to comply." Id. ¶ 31. There was no arguing, yelling or screaming. Id. She contends that she did not try to grab the phone from Damion and that Damion did not run into the house, as defendants contend, since Damion was already in the house with the phone in his hand. Id. ¶ 37.

Plaintiff went to turn toward Damion as he walked away, and Bustamante pointed his gun at plaintiff and said, "get the fuck out [of] my way or I'll blow your motherfucking brains out." Pl.'s Decl. at 3. The next thing plaintiff knew, Culp "snatched [her] over onto this table that was directly in front of [her] living room window." Id. Culp rushed inside and Bustamante was right behind him. Id. Plaintiff then "heard the [taser] shots, but there [weren't] any commands given." Id. Shirley also heard what sounded like two gun shots and then heard a male voice, either Damion or Arlandis, saying, "No, No." Lee Decl. at 5. When plaintiff looked into the window, Damion was on the ground struggling to get up. Pl.'s Decl. at 3. As Damion got to his feet, he stumbled outside. Id. Once he stumbled outside, he slipped and fell and as he got up, he tried to get back inside the house. Id.

According to plaintiff, Damion was in the house when the officers arrived and did not exit the apartment until after he was tased, so it was impossible that he ran at any time other than that. Pl.'s Resp. to UMF ¶ 38. In response to the officers' statements that they momentarily lost sight of Damion when he disappeared into the apartment, that they feared that Damion might be going inside to get a weapon, and they were fearful because they did not know what or who may have been inside the apartment, plaintiff contends that there was ample enough opportunity for both officers to see Damion because there was not anything to obstruct their view; the front door was wide open, the screen to the front door was fully open, and the curtains to the window were completely open. Id. ¶ 39. Also, the officers were able to observe plaintiff, Damion, and Arlandis, and there were no signs of them having any weapons, and there were also no signs of anyone else being in the apartment. Id. ¶¶ 40-41. Plaintiff contends that, with regard to Culp's use of the taser, Culp immediately rushed into the apartment as Damion turned and walked away, and without word set off his taser. Id. ¶ 42. Damion was standing near a blue mat and was on the phone when Culp entered, and that there was no any confrontation to gain control over Damion because Damion was not being confrontational at all with the officers. Id. ¶¶ 43-44. Plaintiff contends that Bustamante rushed inside the apartment along with Culp and was not just outside the door, as defendants contend, and disputes that Bustamante and Culp directed Damion to put his hands behind his back so that he could be handcuffed by stating that no other sound was heard other than the sound of the taser. Id. ¶ 46. In response to the officers' statement that Damion seemed to comply but then he suddenly put his hands up underneath him, pushed himself up off the floor and jumped in front of Culp and toward Bustamante, who was standing near the doorway, plaintiff contends instead that Damion was dazed as he struggled to get to his feet and stumble toward the door. Id. ¶ 47. Contrary to Bustamante's statement that he tried to jump out of Damion's path, but Damion ran toward him, plaintiff contends that Bustamante was standing to the side as Damion made his way to the door. Id. ¶ 48. Contrary to Culp's statements that he initiated a second taser burst to try to control him and that the second taser burst had very minimal effect, plaintiff contends that Damion was already weakened from the first and second tases, so he was under control. Id. ¶¶ 49-50. Damion had fallen, showing that he had been affected by the second tase. Id. ¶ 51. In response to Culp's statement that he again directed Damion to put his hands behind his back and comply with the commands of the deputies, but Damion refused to comply, plaintiff contends that "[y]ou can't comply with a command that you are not given and all Damion was doing was trying to keep from getting tased." Id. ¶ 52. Although defendants contend that suddenly Damion jumped up again and rushed toward Bustamante, plaintiff denies that Damion rushed toward Bustamante and contends instead that in a weakened state, Damion tried to make his way back to the house and that Bustamante happened to be in that direction. Id. ¶ 53. Plaintiff contends that there was no need for Culp to deploy the taser a third time because Damion was already in a weakened state. Id. ¶ 54.

In response to defendants' statement that Damion wrapped his arms around Bustamante, causing there to be very close bodily contact with Bustamante, plaintiff contends that as Damion tried to get up and make his way back inside the house, Bustamante pushed him up against the stucco wall. Id. ¶ 55; Pl.'s Decl. at 3. Damion's knees buckled and he was sliding down the wall. Pl.'s Decl. at 3. Bustamante braced himself, fired two shots, and Damion fell. Id. Neither Culp nor Candido tried to help. Id. Candido was standing in the grass with his rifle and Culp was nowhere in sight. Id. Bustamante only had one gun in his possession since Candido had the rifle. Id.; Pl.'s Resp. to UMF ¶ 59. There was never a struggle between Bustamante and Damion; Damion was in a weakened state and was buckling at his knees and Bustamante braced himself and shot twice. Pl.'s Resp. to UMF ¶ 55.

In response to Bustamante's statement that as Damion had his arms wrapped around Bustamante, Bustamante tried to keep his LER weapon out of Damion's reach, plaintiff contends that there was no rifle in Bustamante's possession. Id. ¶ 59. Also, in response to Bustamante's statement that he felt Damion tugging on his belt and holster and immediately recognized that Damion was actively trying to take away his service pistol, plaintiff contends Damion was not able to grab at anything because he was shot by that time. Id. ¶ 60. Plaintiff also disputes the officers' statement that Candido ran over to the altercation and tried to pull Damion off of Bustamante, stating that Damion was already shot on the ground and Candido stood in the same spot he was in when he first arrived. Id. ¶ 61. In response to Bustamante's statement that he attempted to release the safety hood on his security holster so that he could gain access to his service pistol because he believed that the escalating degree of Damion's physical contact was most likely going to warrant utilizing his firearm, plaintiff states that Bustamante had no struggle with Damion because he had him pressed so hard against the wall that when Bustamante shot Damion, the bullets did not exit. Id. ¶ 62. Additionally, although Bustamante states that he went to release the safety hood on his security holster and realized that it had already been released, plaintiff contends that Bustamante left his own holster hood released because in the beginning of the incident, the officers came in with their guns drawn out and then Bustamante had the gun in his hands at all times. Id. ¶ 63. Regardless, plaintiff contends that Damion was already shot at this time. Id. Plaintiff further contends that Bustamante's concerns that Damion had tried, and was continuing to try, to take away his fully-loaded pistol in the course of the physical struggle are unfounded since Damion was already shot and on the ground at this time. Id. ¶ 64. Finally, plaintiff contends that Bustamante's statement that he was concerned about protecting the LER that was strapped to his chest is unfounded because Candido had the LER and because Damion was already shot at this time. Id. ¶ 65.

Plaintiff contends the sounds of the shots pierced her ears since she was standing just a few feet behind Bustamante as he held Damion up against the wall and shot him. Pl.'s Decl. at 3.The detective later told plaintiff that Damion had passed away from the results of his wounds. Id. at 4.

III. MOTION FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility 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 (1986) (quoting Fed. R. Civ. P. 56(c)).

Summary judgment avoids unnecessary trials in cases with no genuinely disputed material facts. See N.W. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). At issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, Rule 56 serves to screen the latter cases from those which actually require resolution of genuine disputes over material facts; e.g., issues that can only be determined through ...


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