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The Estate of Hernandez-Rojas v. United States

United States District Court, S.D. California

September 29, 2014

THE ESTATE OF ANASTACIO HERNANDEZ-ROJAS, by its personal representative DAISY HERNANDEZ, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant

Page 1170

For Estate of Anastacio Hernandez-Rojas, by its personal representative Maria Puga Moran, Plaintiff: Guadalupe Valencia, LEAD ATTORNEY, San Diego, CA; Eugene G Iredale, Iredale & Yoo, APC, San Diego, CA.

For Daniel Hernandez, a minor, by and through their guardian ad litem, Daniela Hernandez, a minor, by and through their guardian ad litem, Fabian Hernandez, a minor, by and through their guardian ad litem, Plaintiff: Eugene G Iredale, LEAD ATTORNEY, Grace S. Jun, Iredale & Yoo, APC, San Diego, CA; Julia Yoo, Law Office of Eugene G Iredale, San Diego, CA.

For Daisy Hernandez, an individual, Plaintiff: Eugene G Iredale, LEAD ATTORNEY, Grace S. Jun, Iredale & Yoo, APC, San Diego, CA; Guadalupe Valencia, LEAD ATTORNEY, San Diego, CA; Julia Yoo, Law Office of Eugene G Iredale, San Diego, CA.

For United States of America, Defendant: U S Attorney CV, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Ann E Harwood, LEAD ATTORNEY, U.S. Attorney General, Phoenix, AZ.

For Customs and Border Protection Agent 7663, Defendant: Richard Tolles, LEAD ATTORNEY, Law Offices of Richard Tolles, San Diego, CA.

For Border Patrol Agent V325, Border Patrol Agent V315, Defendants: Dane Joseph Bitterlin, Hugh Anthony McCabe, LEAD ATTORNEYS, Neil Dymott Frank McFall & Trexler APLC, San Diego, CA.

For Immigration Enforcement Agent 2054, Immigration Enforcement Agent 7G2186, Defendants: Barton H. Hegeler, LEAD ATTORNEY, Hegler & Anderson, San Diego, CA; Storm Peyton Anderson, Barton H. Hegeler, Attorney at Law, A.P.C., San Diego, CA.

For Border Patrol Agent L, d.o.b. 11/4/1969, U S Attorney CV, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA; Daniel R Shinoff, LEAD ATTORNEY, Stutz Artiano Shinoff and Holtz, San Diego, CA; William B. Shinoff, LEAD ATTORNEY, Stutz Artiano Shinoff & Holtz, San Diego, CA.

For Customs and Border Protection Agent B, d.o.b. 7/8/1969, Customs and Border Protection Officer S, d.o.b. 10/27/1971, Defendants: Daniel R Shinoff, LEAD ATTORNEY, Stutz Artiano Shinoff and Holtz, San Diego, CA; William B. Shinoff, LEAD ATTORNEY, Stutz Artiano Shinoff & Holtz, San Diego, CA.

For Border Patrol Supervisor V61, Defendant: John P McCormick, Konrad Muth Rasmussen, LEAD ATTORNEYS, McCormick and Mitchell, San Diego, CA.

For Border Patrol Supervisor I199, Border Patrol Supervisor I68, Customs and Border Protection Supervisor CAQ03175, Defendants: Charles V Berwanger, LEAD ATTORNEY, Gordon and Rees, San Diego, CA.

For Maria Puga Moran, Guardian Ad Litem Party: Eugene G Iredale, Iredale & Yoo, APC, San Diego, CA; Guadalupe Valencia, LEAD ATTORNEY, San Diego, CA; Julia Yoo, Law Office of Eugene G Iredale, San Diego, CA.

Page 1171

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT [doc. nos. 145, 146, 147, 151, 152, 153, 184, 185, 197, 201]

M. James Lorenz, United States District Judge.

Currently pending are the individual defendants' motions for summary judgment. The motions are fully briefed and are considered without oral argument.

I. Background

On March 23, 2012, Plaintiffs, the Estate of Anastacio Hernandez-Roja, which is for the benefit of the children of decedent (" Anastacio" ), filed the operative third amended complaint (" TAC" ). [ELECTRONIC CASE FILING ADMINISTRATIVE POLICIES AND PROCEDURES M #53.] Plaintiffs assert fourteen causes of action: five of the causes of action are alleged constitutional violations under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the remaining nine are brought under the Federal Tort Claims Act and the Alien Tort Claims Act. Plaintiffs seek general and special damages, punitive damages, and injunctive or declaratory relief.

The initial complaint and the first amended complaint were brought against the United States of America and Does 1-50. The second amended complaint [doc. #16] named individual defendants with a numbering system. In their joint motion for protective order, [doc. #41], the parties agreed to use a " star numbering system for each of the individually named defendants at least through the discovery phase of litigation." Id. at 2. The TAC continued the use of the numbering system. After a telephonic status conference with the magistrate judge, the requirement that the parties use a star numbering system for each individually named defendant was lifted, except as to defendant Gabriel Ducoing. (Order filed July 29, 2013. [doc. # 242]) The magistrate judge ordered supplemental briefing with respect to the continued application of the star numbering system to defendant Ducoing. After full review of the matters presented, the magistrate judge found that the numbering system would no longer apply to

Page 1172

Ducoing. In an effort to clarify the identities of the individual defendants, the Court will use the individual defendants' names rather than the star numbering system.[1]

Customs and Border Protection Agent 7663

Jerry Vales

#201

Border Patrol Agent V325

Gabriel Ducoing

#146

Border Patrol Agent V315

Philip Krasielwicz

#145

Immigration Enforcement Agent Piligrino

Andre Piligrino

#185

Immigration Enforcement Agent 7G2186

Harinzo Narainesingh

#184

Border Patrol Agent L

Derrick Llewellyn

#152

Customs and Border Protection Agent B

Alan Boutwell

#151

Customs and Border Protection Officer S

Kurt Sauer

#153

Border Patrol Supervisor Finn

Ishmael Finn

#147

Border Patrol Supervisor 1199

Guillermo E. Avila

#197

Border Patrol Supervisor 168

Edward C. Caliri

#197

Custom & Border Protection

Supervisor CAQ03175

Ramon DeJesus

#197

Plaintiffs allege that their father, Anastacio, a 42-year old Mexican national, died as a result of physical abuse by Defendants. (TAC ¶ 28.)[2] On May 28, 2010, United States Border Patrol agents arrested Anastacio and his brother on United States land near the Mexican border. ( Id. ¶ ¶ 43-44, 46.) Those agents then transported the men to the Border Patrol Detention Facility and turned them over to two of the defendants, Border Patrol Agent Philip Krasielwicz (" Krasielwicz" ) and Border Patrol Agent Gabriel Ducoing (" Ducoing" ). ( Id. ¶ ¶ 57, 59.)

After Ducoing ordered Anastacio to empty his water jug, the agent allegedly slapped the jug from Anastacio's hand. (TAC ¶ ¶ 62, 64.) Following Anastacio's complaint to the agent about the slap, Ducoing allegedly grabbed Anastacio, pushed him against a wall, and " repeatedly kicked the inside of Anastacio's ankles." ( Id. ¶ ¶ 65-67.) Anastacio requested medical treatment and an opportunity to appear before an Immigration judge. ( Id. ¶ ¶ 72-73.) Ducoing did not comply with Anastacio's requests. ( Id. ¶ 74.)

After being taken to the processing area, Anastacio complained to two Border Patrol agents about Ducoing's treatment and requested medical attention and the opportunity to appear before an Immigration Judge. (TAC ¶ ¶ 75-76.) Anastacio then reiterated his complaints and requests to Border Patrol Supervisor Ishmael Finn (" Finn" ). ( Id. ¶ 78.) In response, Finn ordered Krasielwicz and Ducoing to immediately remove Anastacio from the United States. ( Id. ¶ 82.) The agents drove Anastacio to a border area known as " Whiskey 2," took him out of the car, and allegedly pushed him against the car and " tried to throw him to the ground." ( Id. ¶ ¶ 86, 88.) Immigration Enforcement Agent Harinzo Naraisnesingh (" Narainesingh" ) and Immigration Enforcement Agent Piligrino (" Piligrino" ) arrived and struck Anastacio " repeatedly" with batons. ( Id. ¶ 89.) Border Patrol Agent Derrick Llewellyn (" Llewellyn" ) arrived and allegedly punched Anastacio " repeatedly." ( Id. ¶ 90.) The five agents threw Anastacio to the ground and handcuffed him. ( Id. ¶ 91.) While Anastacio was lying on his stomach and in handcuffs, the agents allegedly " punched, kicked and stepped on Anastacio's head and body." ( Id. ¶ 92.)

Page 1173

While this was taking place, a group of civilians formed. (TAC ¶ 93.) The civilians took photographs and videos of the events and screamed for the agents to stop. ( Id. ¶ ¶ 94-95.) Anastacio cried out for help and begged for the agents to stop. ( Id. ¶ 98.) Plaintiffs allege that U.S. Customs and Border Protection Supervisor Ramon DeJesus (" DeJesus" ) confiscated bystanders' phones and erased the photographs and videos. ( Id. ¶ 96.)

Agents Alan Boutwell (" Boutwell" ) and Kurt Sauer (" Sauer" ), along with the five original agents on the scene, allegedly struck a Anastacio. (TAC ¶ 102.) After Border Patrol Supervisors Guillermo E. Avila (" Avila" ) and Edward C. Caliri (" Caliri" ) arrived, they allegedly " permitted and encouraged the agents to continue abusing Anastacio." ( Id. ¶ ¶ 103-105.) Customs and Border Patrol Officer Jerry Vales (" Vales" ) shot Anastacio with his Taser gun four or five times. ( Id. ¶ 107, 114.) Llewellyn, Boutwell, and Sauer then allegedly beat Anastacio and " ziptied his legs to his already handcuffed hands, putting him in a 'hog tied' position on his stomach." ( Id. ¶ 115.)

Plaintiffs allege that as a result of these events, Anastacio suffered a heart attack and ultimately died. (TAC ¶ ¶ 116, 118.) Dr. Glenn Wagner, San Diego County Chief Medical Examiner, performed an autopsy and ruled that the death was a homicide. (Plfs' Exh. 43.) Dr. Marvin Pietruszka performed another autopsy and found several injuries to Anastacio's body, including broken ribs and large hematomas. (Plfs' Exh. 44.) Dr. Pietruszka also ruled the death a homicide and found " the cause of death to be lack of oxygen to the brain brought on by a heart attack." ( Id. ¶ 119.)

II. Summary Judgment Standard

Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. " Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

" The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated " to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of Am.,

Page 1174

55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating " that there is some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (" The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient." ) (citing Anderson, 477 U.S. at 242, 252). Rather, the nonmoving party must " go beyond the pleadings" and by " the depositions, answers to interrogatories, and admissions on file," designate " specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. " Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.

III. Evidentiary Objections

Before turning to the merits of defendants' motions, the Court notes that both parties have submitted objections to various evidentiary materials.

A. Defendants' Joint Objections to Plaintiffs' Exhibits

Defendants' joint objections characterize plaintiffs' evidence as being unsupported assertions, misstatements of testimony, speculative, argumentative, not authenticated, or misleading. ( See Objections filed October 1, 2013.)

" At summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial." Nevada Dep't of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001)) (internal quotations omitted). The focus is on the admissibility of the evidence's contents, not its form. Fonseca v. Sysco Food Servs.of Arizona, Inc., 374 F.3d 840, 846 (9th Cir. 2004); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).

Unauthenticated documents cannot be considered in a motion for summary judgment, Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir. 2011) (citing Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002)) (quotation marks omitted), and therefore, lack of proper authentication can be an appropriate objection where the document's authenticity is genuinely in dispute. But an inquiry into authenticity concerns the genuineness of an item of evidence, not its admissibility, Orr, 285 F.3d at 776, and documents may be authenticated by review of their contents if they appear to be sufficiently genuine. Las Vegas Sands, LLC, 632 F.3d at 533 (citing Orr, 285 F.3d at 778 n. 24) (quotation marks omitted).

" Objections to evidence on the ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard

Page 1175

itself" and are thus " redundant" and unnecessary to consider here. Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006); see Anderson, 477 U.S. at 248 (" Factual disputes that are irrelevant or unnecessary will not be counted." ).

In ruling on summary judgment, the Court considers the evidence submitted in support of and opposition to the motion, it does not rely on the parties' characterization of the evidence. See Dalton v. Straumann Co. USA Inc., 2001 WL 590038, at *4 (N.D. Cal. May 18, 2001) (" Statements of undisputed facts, as in this case, are generally unhelpful. It is on the underlying declarations, depositions and exhibits that the court will rely." ).

As the case law noted above makes clear, defendants' objections concerning unsupported assertions or misstatements of testimony, or evidence being speculative or argumentative, or not properly authenticated, or statements that appear to be misleading are without merit at the summary judgment stage. In reviewing the present motions for summary judgment and plaintiffs' response, the Court has given attention to the evidence presented and the applicable Rules ...


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