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Killian v. City of Monterey

United States District Court, N.D. California, San Jose Division

April 16, 2014

CITY OF MONTEREY, et al., Defendants.


PAUL S. GREWAL, Magistrate Judge.

Before the court is Defendants Kris Richardson and John Olney's motion for summary judgment as to Plaintiff J. Robert Killian's remaining equal protection claim[1] and Ben Nisenbaum's motion to withdraw as counsel of record for Killian.[2] Killian has not filed any timely opposition to either motion.[3] With the benefit of the parties' prior summary judgment argument, [4] the court finds this additional motion for summary judgment suitable for disposition on the papers.[5] In the interests of expediency, the court will turn directly to the motion before it.[6]

In its prior summary judgment order, the court noted that although Defendants sought summary judgment as to all of Killian's claims, Defendants did not "substantively address" why summary judgment was warranted on Killian's equal protection claim related to Officers Richardson and Olney.[7] Because the current motion remedies that defect, summary judgment on the sole remaining equal protection claim is warranted.


A. Summary Judgment

Pursuant to Fed.R.Civ.P. 56(a), the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[8] Material facts are those that may affect the outcome of the case.[9] A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party.[10] When the parties file cross-motions for summary judgment, the district court must consider all of the evidence submitted in support of both motions to evaluate whether a genuine issue of material fact exists precluding summary judgment for either party.[11]

B. Qualified Immunity

Qualified immunity shields government officials from civil liability under Section 1983 where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[12] "Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."[13]

A police officer is entitled to qualified immunity from a civil rights action unless, under the particularized circumstances he faced at the time of his actions, it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted.[14] The issue of qualified immunity requires a determination of: (1) whether the facts show the officer's conduct violated a constitutional right and (2) whether the right was clearly established.[15] The court may evaluate the two prongs in any order.[16] It is the responsibility of the jury, not the judge, to determine any disputed foundational or historical facts that underlie the determination of whether an officer is entitled to qualified immunity.[17]

In this case, Killian "bears the burden of proving that the rights" he "claims were clearly established' at the time of the alleged violation."[18] The burden is on the government, however, to show that "a reasonable police officer could have believed, in light of the settled law, that he was not violating a constitutional or statutory right."[19]

C. Equal Protection

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person within its jurisdiction the equal protection of the laws, ' which is essentially a direction that all persons similarly situated should be treated alike."[20] "To prevail on an equal protection claim under the Fourteenth Amendment, a plaintiff must demonstrate that enforcement [of the laws] had a discriminatory effect and the police were motivated by a discriminatory purpose.'"[21] "Enforcement may be shown through a variety of actual or threatened arrests, searches and temporary seizures, citations, and other coercive conduct by the police."[22] In order to prove a discriminatory effect, "the claimant must show that similarly situated individuals" were not prosecuted.[23]

D. Motion to Withdraw

Civil L.R. 11-5 provides: "Counsel may not withdraw from an action until relieved by order of Court after written notice has been given reasonably in advance to the client and to all other parties who have appeared in the case." "The decision to grant or deny counsel's motion to withdraw is committed to the discretion of the trial court."[24]


A. Killian Has Not Identified Any Similarly-Situated Individual Who Was Treated Differently

In its prior order the court held that "a reasonable jury could only find" that Officers Richardson and Olney had "probable cause" to arrest Killian.[25] The court also found that there was "no dispute that Olney had seen Killian driving an hour before at a different location at a time when his behavior was markedly" different and that later the car was found "at a different location" with Killian in the driver's seat.[26] The court also found that there was "no dispute" that "the car obstructed both pedestrian and vehicular" traffic and Killian had "consumed opiate and benzodiapine medication" and "performed poorly on sobriety tests."[27] Moreover, "the hour was late" and "Killian's car was illegally parked across an entire crosswalk at a four-way intersection with several stop lights."[28] In light of the uncontroverted factual record summary judgment also is warranted on Killian's remaining equal protection claim. Because Killian has not identified similarly-situated individuals who were treated differently, a reasonable jury could only find that the defendant officers did not violate Killian's constitutional right to the equal protection of the laws. Because Killian cites no case law that the defendant officers violated any clearly established constitutional right by acting on the probable cause that was present when they arrested Killian, the officers are entitled to qualified immunity on Killian's equal protection claim. Summary judgment on Killian's equal protection claim therefore is GRANTED.

B. Nisenbaum's Motion to Withdraw as Killian's Counsel of Record

Killian's counsel Benjamin Nisenbaum moves to withdraw from his representation in this case because Nisenbaum and Killian have reached an impasse about whether or not and under what circumstances the case should proceed.[29] That motion is unopposed and has been filed on the docket.[30] The court discussed the issue at a hearing which was attended by Nisenbaum, Killian and Defendants' counsel of record, Omar Rodriguez.[31] Because the court believes that both Killian and Nisenbaum would be best-served by permitting Nisenbaum to withdraw, the court GRANTS Nisenbaum's motion. Killian is reminded that now that Nisenbaum is no longer counsel of record in this case, he may seek advice from Federal Legal Assistance Self-Help Center ("FLASH") located on the second floor of the courthouse, here, in San Jose.

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