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Richardson v. Kanouse

United States District Court, Ninth Circuit

September 19, 2013



DEAN D. PREGERSON, District Judge.

Presently before the court is a Motion for Summary Judgment filed by thirteen remaining defendants. Having considered the submissions of the parties, the court grants the motion in part, denies in part, and adopts the following order.

I. Background

On March 13, 2010, Damion Richardson was an inmate at Los Angeles County Central Jail. Upon returning to his housing module, Richardson was ordered to stand near the entrance of the module, facing a wall. Plaintiff alleges that guards proceeded to beat Richardson, without provocation. Plaintiff further alleges that other Sheriff's Deputies conspired to cover up the incident and cause Richardson to be criminally prosecuted. Plaintiff's Second Amended Complaint alleges several causes of action against different groups of Defendants for violations of 42 U.S.C. § 1983. Defendants now move for summary judgment, on various grounds.

II. Legal Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex , 477 U.S. at 323.

Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " and material facts are those "that might affect the outcome of the suit under the governing law." Anderson , 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan , 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist. , 237 F.3d 1026, 1031 (9th Cir. 2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.

III. Discussion

As an initial matter, Plaintiff either explicitly acknowledges or implicitly concedes, by omission and failure to oppose, that summary judgment should be entered with respect to several claims and defendants. The court is satisfied that Defendants' papers are sufficient to support summary judgment with respect to these issues. The court addresses each of the contested arguments in turn.

A. Availability of Damages

Richardson died in 2012. Generally, Fourth Amendment claims such as those brought here cannot be vicariously asserted. United States v. Struckman , 603 F.3d 731, 746 (9th Cir. 2010). In a Section 1983 action, however, a decedent's survivors may bring a survival action if state law authorizes such a suit. Moreland v. Las Vegas Metro. Police Dept. , 159 F.3d 365, 369 (9th Cir. 1998). California law does allow survival actions. Cal. Code Civ. P. § 377.30.

Section 1983 does not, however, address what damages are recoverable in a survival action. Nor does federal law look exclusively to state law. Rather, "42 U.S.C. § 1988(a) requires the application of state-law survival remedies in § 1983 actions unless those remedies are inconsistent with the Constitution and laws of the United States." Jefferson v. City of Tarrant , 522 U.S. 75, 79 (1997) (emphasis added) (internal quotation and citation omitted). While California law does allow survivors to recover "any penalties or punitive damages or exemplary damages that the decedent would have been entitled to recover, state law disallows recovery for pain and suffering. Cal. Code Civ. P. § 377.34.

Defendants argue that summary judgment is warranted because the Second Amended Complaint seeks only pain and suffering damages of the type disallowed under California law. As discussed above, however, California law is only applicable to the extent that it does not conflict with federal law. The Ninth Circuit has acknowledged that it has not yet weighed in on this question. Mahach-Watkins v. Depee , 593 F.3d 1054, 1060 (9th Cir. 2010). In the absence of controlling authority, California district courts are split. In general, courts in the Eastern District of California have barred Section 1983 claims for pain and suffering on the basis of California's Section 377.4. See, e.g., Herrera v. City of Sacramento, No. 13-cv-00456-JAM-AC, 2013 WL 3992497 at *5-6 (E.D. Cal. Aug. 2, 2013). Courts in the Central, Southern, and Northern Districts have come to the opposite conclusion, reasoning that it would be inconsistent with Section 1983 to punish official deprivations of civil rights less severely when the official acts result in the victim's death. Id .; Cotton v. City of Eureka , 860 F.Supp.2d 999, 1011-1012 (N.D. Cal. 2012).

This court agrees with the well-reasoned decisions in the latter line of cases. Plaintiff's prayer solely for pain and suffering damages therefore does not serve as a basis for summary judgment in favor of Defendants.

B. Defendants Goodwin and Owens' Use of Force

1. Evidence of Excessive Force

Defendants Goodwin and Owens, who were serving as guards at the time of the incident, argue that the undisputed facts demonstrate that they acted reasonably and appropriately on the date in question. Defendants have submitted evidence that Richardson instigated the incident by elbowing Defendant Goodwin. (Goodwin Declaration at 3). In their telling, Goodwin attempted to restrain Richardson against a wall, but was unsuccessful. (Id.) Goodwin attempted to "take down" Richardson to the floor, and in the process, tripped and fell on top of Richardson's head. (Id.) Deputy Owens attempted to assist, but Richardson continued to resist, kicking out with his legs. (Id.) Goodwin punched Richardson in the face and kneed him in the back, to no avail. (Id.) Only after a third guard, Defendant Hernandez, rendered assistance were Defendants Goodwin and Owen able to restrain Richardson.[1] ( Id. at 4.)

Plaintiff disputes Defendants' version of events. Plaintiff supports its position almost entirely by reference to the Verified First Amended Complaint, filed by Richardson himself prior to his death in 2012 and prior to the substitution of the current Plaintiff. A verified complaint may generally be used as an affidavit for purposes of opposing summary judgment, so long as it is based upon personal knowledge and sets forth specific, admissible facts. Schroeder v. McDonald , 55 F.3d 454, 460 (9th Cir. 1995). Though it need not itself be admissible at trial, an affidavit submitted in opposition to summary judgment cannot be based on inadmissible hearsay. Block v. City of Los Angeles , 253 F.3d 410, 419 (9th Cir. 2001).

Richardson's Verified First Amended Complaint contains both hearsay and specific facts within his personal knowledge. To the extent Defendants contest the admissibility of the hearsay portions of the Verified Complaint, Defendants' objections are granted. Defendants further contend that the Verified Complaint is inadmissible in its entirety because Richardson is dead, and cannot be cross-examined. The non-hearsay portions of the Verified Complaint, however, satisfy Federal Rule of Civil Procedure 56, which does not contain any cross-examination requirement. See Oto v. Metro. Life Ins. Co. , 224 F.3d 601, 604-05 (7th Cir. 2000).

Furthermore, even putting aside the Verified Amended Complaint, Plaintiff cites to some other evidence giving rise to a genuine dispute of material fact. Specifically, Plaintiff points to the deposition testimony of Richardson's fellow inmates. Dennis Davis, for example, testified that he saw Defendant Owens and another officer strike Richardson from behind and beat Richardson even though Richardson was facing a wall with his hands at his side, and that Richardson did not resist at any point. (Declaration of Jeff Dominic Price, Ex. 104 at 7-10.) Another inmate, Timothy Galloway, testified at a state court preliminary hearing that Richardson's hands were in his pockets when Defendants began to hit him. (Price Decl., Ex. 102 at 61-63.)[2] This evidence is sufficient to give rise to a genuine dispute whether Defendants Goodwin and Owens utilized excessive force against Richardson.

For these same reasons, Defendants Goodwin and Owens are not entitled to qualified immunity. The testimony of Richardson's fellow inmates, taken as true, establishes that Defendants violated Richardson's Fourth Amendment rights. See Saucier v. Katz , 533 U.S. 194, 201 (2001). The right to be free of excessive force has long been clearly established. Gravelet-Blondin, 2013 WL 4767182. Defendants Goodwin and Owens are, therefore, not entitled to summary judgment on Plaintiff's Count Two claim for excessive force.

C. Conspiracy to Violate Civil Rights

The Second Amended Complaint alleges a cause of action for conspiracy to violate Richardson's constitutional rights against all individual Defendants. A Section 1983 conspiracy claim requires a plaintiff to demonstrate "material facts that show an agreement among the alleged conspirators to deprive the party of his or her civil rights." Margolis v. Ryan , 140 F.3d 850, 853 (9th Cir. 1998). Defendants contend that there are no such facts. (Mot. at 17.) Plaintiff provides no argument or citation to the contrary. In the absence of any evidence of a conspiracy, Defendants are entitled to summary judgment on Plaintiff's conspiracy claims.

D. Malicious Prosecution

Plaintiff also alleges a malicious prosecution claim against all individual defendants. In response to Defendants' argument that summary judgment is warranted, Plaintiff argues only that Defendants Goodwin, Owens, and Taylor are not entitled to summary judgment. (Opp. at 13.)

After the incident, Defendant Goodwin wrote an Incident report, which included supplemental reports written by Defendants Owens and Taylor. (Goodwin Decl. at 2.) Goodwin's report indicated that there were not multiple witnesses to the incident, and described Richardson's injuries as "a minor abrasion to his upper forehead, a small laceration to his lower lip and 2 broken upper teeth." (Price Decl., Ex. 105 at 2-3.) Defendant Owens' supplemental report recounted details of the incident, but made no mention of witnesses or injuries. (Price Decl., Ex. 106).

Defendant Taylor was assigned to investigate potential criminal charges against Richardson stemming from the incident. (Prince Decl., Ex. 103 at 9, 27.) Subsequent to the incident, Richardson gave a videotaped interview while he was being treated for his injuries in the jail clinic. (Declaration of Keith Kanouse, Ex. A; Price Decl., Ex. 103 at 29.) Defendant Taylor did not watch the interview at any point prior to submitting her report to the District Attorney.[3] (Price Decl., Ex. 103 at 29, 51.) Following Taylor's report, Richardson was charged with a violation of California Penal Code Section 69. The case was dismissed, then refiled. The second case was ultimately dismissed as well.

Malicious prosecution claims are cognizable under Section 1983 if a plaintiff can show that defendants maliciously prosecuted him without probably cause for the purpose of denying him a constitutional right. Awabdy v. City of Adelanto , 368 F.3d 1062, 1065 (9th Cir. 1995). Under California law, a plaintiff must demonstrate that the criminal action (1) was commenced at the direction of the defendant and was resolved in the plaintiff's favor, (2) was brought without probable cause, and (3) was brought with malice.[4] Kleveland v. Siegel & Wolensky, LLP , 215 Cal.App.4th 534, 539 (2013).

Here, Defendants argue that the criminal prosecutions were neither resolved in Richardson's favor nor brought without probable cause. (Mot. at 18.) To constitute a favorable termination, the resolution of an action brought against a plaintiff "must reflect the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit." Jay v. Mahaffey, ___ Cal.Rptr.3d ___, 2013 WL 4508710 at *10 (Cal.App. 4 Dist. Jul. 31, 2013). A dismissal of an action, including a voluntary dismissal, may constitute a decision on the merits. JSJ Ltd. Partnership v. Mehrban , 205 Cal.App.4th 1512, 1524 (2012). A court must, however, examine the reasons for the dismissal to determine whether it reflected on the merits. Id .; See also Oviedo v. Windsor Twelve Props., LLC, 121 Cal.App.4th 97, 151 (2012) ("A voluntary dismissal is presumed to be a favorable termination on the merits....").

Plaintiff cites generally, without specific reference, to the declaration of its counsel for the proposition that the criminal action was resolved in Richardson's favor for purposes of his malicious prosecution claim. (Opp. at 18.) Counsel states that a Deputy District Attorney told him that Deputy witnesses would not testify, and thus the prosecution would not be able to proceed. (Price Dec. ¶¶ 12-14.) Plaintiff cites to no other evidence regarding why the action was dismissed. Nor does Plaintiff dispute that the criminal action was dismissed for delay in prosecution under California Penal Code Section 1382. A delay in prosecution, however, does not constitute a decision on the merits. Franklin Capital Corp. v. Wilson , 148 Cal.App.4th 187, 215 (2007).

Absent any genuine dispute that the criminal action against Richardson was resolved on the merits in his favor, Defendants are entitled to summary judgment on the malicious prosecution claim.

E. Monell Claim

A municipality is only liable for constitutional violations perpetrated by its employees if the government entity officially adopted and promulgated a "policy, custom, or practice that was the moving force' behind the constitutional violation. Gravelet-Blondin v. Shelton, ___ F.3d ___, 2013 WL 4767182 (9th Cir. Sept. 6, 2013) (internal quotation and citation omitted); Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 690-98 (1978).

The only evidence cited by Plaintiff to support the existence of a policy or practice is a September 2012 report issued by the the Citizens' Commission on Jail Violence (the "CCJV Report"). As Plaintiff itself acknowledges, the CCJV Report is approximately 200 pages long. Plaintiff's only citation, however, is to a thirty nine-page section of the CCJV Report. Furthermore, this exceedingly imprecise reference stands only for the proposition that "[Sheriff's] personnel have used force against inmates when the force was disproportionate to the threat posed or there was no threat at all." (Opp. at 20.) Even if the court were to consider this fact, that some County personnel have at some point used inappropriate force does little to establish a coherent policy, custom, or practice. Furthermore, Plaintiff provides no explanation why the CCJV Report, which includes, among other things, background historical information, findings, and recommendations, some of which constitute hearsay, is admissible in its entirety. While certain portions of the CCJV Report might be admissible, Plaintiff identifies no such specific statements, let alone any grounds for their admissibility. Carmen , 237 F.3d at 1031. Plaintiff's broad invocation of the CCJV Report, therefore, is insufficient to create a genuine dispute of material fact regarding the existence of any policy, custom, or practice.

IV. Conclusion

As discussed above, Plaintiff has opposed only a narrow subset of Defendants' arguments for summary judgment. For the reasons stated above, Plaintiff's arguments regarding its conspiracy, malicious prosecution, and Monell claims are unpersuasive. Therefore, Defendants' Motion for Summary Judgment on all claims is GRANTED in part, with one exception. Defendants' Motion is DENIED with respect to Plaintiff's excessive force claims against Defendants Goodwin and Owens individually.


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