The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON MOTION FOR RECONSIDERATION (Doc. 100)
Before the Court is a motion by Defendants Frank Harper and Robert Carey (collectively "Defendants") for reconsideration of this Court's order on Defendants' motion for summary adjudication of the operative claims in Plaintiff Donnie Srabian's complaint. Specifically, the motion challenges the order's findings on Srabian's claim for excessive non-deadly force in violation of 42 U.S.C. § 1983 relating to Defendants' handcuffing of Srabian. For the reasons discussed below, this Court GRANTS Defendants' motion for reconsideration.
On Friday, February 16, 2007, Harper was dispatched to respond to a "911 hang-up call" at an address close to the residence of Donnie Srabian, his brother Martin Srabian, and his sister Beverly Srabian. When Harper pulled up outside of the Srabian residence, Donnie Srabian and Martin Srabian were in the kitchen of their house, and they exited the house to investigate after hearing a noise outside. Donnie Srabian, who was holding a gun when he came outside, exited the house before Martin Srabian, and was shot by Harper.
After Harper fired, Donnie Srabian fell onto the grass and generally assumed a fetal position. Srabian's gun, ski mask and a knit beanie style cap were recovered on the grass.
After he shot Donnie Srabian, Harper put out a "shots fired" broadcast on his patrol car radio and requested that emergency medical services be dispatched to address Srabian's medical needs. Martin Srabian exited the house after Donnie Srabian. After Harper shot Donnie Srabian, Martin Srabian informed Harper that Donnie Srabian was his brother. Harper reported on his radio that that a subject had pointed a gun at him and that there was another subject who was being uncooperative.
Around this time or shortly afterward, Defendant Carey arrived on the scene to assist. When Carey arrived, Donnie Srabian was lying on the ground. Harper still had his gun drawn.
Harper and Carey together handcuffed Donnie Srabian, who was still lying on the ground. After being turned over to emergency medical personnel, Srabian was transported to University Medical Center by ambulance and was hospitalized from February 16 to February 21, 2007.
B.Relevant Procedural History
This action was filed on March 10, 2008. In a related criminal case, Donnie Srabian was convicted of the misdemeanor of brandishing or exhibiting a firearm in violation of Penal Code § 417(a)(2). The People of the State of California v. Donnie Charles Srabian, Fresno County Superior Court Case No. F0790158. (Doc. 53). Harper and Carey filed a motion for summary judgment on the operative claims on October 19, 2012. (Doc. 82). On November 27, 2012 this Court granted in part and denied in part Defendants' motion for summary judgment. (Doc. 97). Defendants filed the instant motion for reconsideration on November 30, 2012, and Srabian filed an opposition on December 13, 2012. (Docs. 100, 111). Srabian then filed a supplement to the opposition on December 14, 2012. (Doc. 116).
DISCUSSION Motion for ...