United States District Court, E.D. California
EVELYN NEAL, individually and as Mother of MARVIN GARDNER, deceased; and NELAYAH GARDNER (a minor through her guardian ad litem TRILONNI LEWIS), Plaintiffs,
CITY OF FRESNO, a municipal corporation; JERRY DYER, in his capacity as Chief of Fresno Police Department and in his individual capacity, POLICE OFFICER JOHN DOE NO.1 in his individual capacity; and DOES 1 through 50, inclusive, Defendants.
ORDER ON MOTION FOR SUMMARY JUDGMENT (DOCS. 19 & 20)
LAWRENCE J. O'NEILL, District Judge.
This case concerns the circumstances surrounding the death of Marvin Gardner ("Gardner") on March 17, 2011. While responding to a 911 call for a burglary with a hostage, Fresno Police Officer Ayello shot and killed Gardner as he fled the scene. Evelyn Neal, Garnder's mother, and Nelayah Gardner, Gardner's daughter, as represented through her guardian ad litem, (collectively "Plaintiffs") advance five causes of action under 42 U.S.C. § 1983, including violations of Plaintiffs' fourth and fourteenth amendment rights, as well as claims for wrongful death and conspiracy to use excessive force. Now before the Court is the City of Fresno, Jerry Dyer, and Police Officer Joe Doe No. 1's (collectively "Defendants") Motion for Summary Judgment ("MSJ") on all claims. Doc. 19. Plaintiffs oppose summary judgment and ask the court for additional time for discovery. Doc. 20. Defendants replied. Doc. 23. The motion was set for hearing February 19, 2015, but the hearing was vacated and the matter submitted for decision on the papers pursuant to Local Rule 230(g). Doc. 24.
II. PROCEDURAL HISTORY
On February 27, 2013, Plaintiffs brought a complaint against Defendants under 42 U.S.C. § 1983 ("§ 1983"). Doc. 1. Plaintiffs filed a first amended complaint on July 3, 2013. Doc. 11. Plaintiffs subsequently filed a second amended complaint ("SAC") on August 13, 2013, asserting § 1983 claims for violations of their fourth and fourteenth amendment rights, as well as claims for wrongful death and conspiracy to use excessive force. Doc. 14. Defendants filed their answer on August 13, 2013, asserting thirty-three affirmative defenses. Doc. 15. Defendants then filed a motion for summary judgment arguing that Plaintiffs have neither presented any genuine issue of disputed fact nor conducted any discovery which might have provided evidence of a factual dispute. Doc. 19. Filed in conjunction with their MSJ, Defendants filed: (1) excerpts from the deposition of Trilonni Lewis; (2) the declaration of Officer Greg Ayello ("Officer Ayello"); (3) Plaintiffs' response to production requests; and (3) Gardner's official autopsy report. Docs. 19-1 through 19-9. Plaintiffs filed their opposition ("the opposition") to the MSJ on January 29, 2015, in which Plaintiffs requested an extension of time to allow for additional discovery. Doc. 20. Plaintiffs have not filed any exhibits with the Court. Defendants replied on February 10, 2015. Doc. 23.
III. FACTUAL BACKGROUND
On March 17, 2011, shortly after 8:00am, the Fresno Police Department ("FPD") was informed of an in progress robbery at the Cash Express in downtown Fresno. Defendants' Separate Statement of Undisputed Facts ("DSSUF"). Doc. 19-8 at ¶ 1. Responding officers, including Officer Ayello, were informed that two male suspects, who were believed to be armed, threatened a civilian employee inside the Cash Express. Id. at ¶¶ 2-3. In their opposition to the MSJ, the Plaintiffs assert that it was Gardner's accomplice who threatened the civilian employee with a gun, forced her to open the safe, and subsequently tied her up. Doc. 20 at 2. According to Officer Ayello's version of events, which is undisputed, while setting up a perimeter around the Cash Express, Officer Ayello heard a loud bang as if someone had kicked open a door. Declaration of Greg Ayello. Doc. 19-2 at ¶ 3. Officer Ayello stated that as he went to investigate the noise, he saw a man, later identified as Gardner, wearing a heavy coat and bandana covering his face scaling a fence behind the Cash Express building. Id. at ¶ 4. Officer Ayello, who was in uniform at the time, identified himself verbally as police and then ordered Gardner to stop. DSSUF at ¶ 5. Officer Ayello commanded Gardner to freeze several times, however, Gardner did not comply and, upon reaching the other side of the fence, Gardner began to lift his coat using both of his hands. Declaration of Greg Ayello. Doc. 19-2 at ¶ 4. Plaintiffs assert that Gardner was raising his hand in an effort to surrender, but offer no evidentiary support for this assertion. Doc. 20 at 2. According to Officer Ayello's declaration, based upon information Officer Ayello received from emergency dispatch, Officer Ayello believed Gardner may have been armed. Declaration of Greg Ayello. Doc. 19-2 at ¶ 5. Fearing for his safety and the safety of his fellow officers, Officer Ayello shot Gardner when Gardner began to lift his coat because Gardner appeared to be reaching for a weapon. Id. Officer Ayello then continued to cover Gardner until other officers arrived and were able to place Gardner under arrest. Id.
Plaintiffs allege that after shooting Gardner, Officer Ayello physically struck Gardner and placed him in handcuffs. SAC at 3. Plaintiffs further assert that Officer Ayello refused to remove the handcuffs to allow emergency medical treatment to be provided. Doc. 20 at 3. However, Plaintiffs again offer no evidentiary support for either of these assertions.
Eventually, the second suspect was apprehend on the roof of the Cash Express building where a loaded handgun was located. Declaration of Greg Ayello. Doc. 19-2 at ¶ 6. It is undisputed that Gardner was unarmed at the time he was shot. Doc. 21 at 3. Gardner was taken by paramedics to Community Regional Medical Center where, after receiving emergency medical care, he died from a gunshot wound. Fresno County Coroner's Report Doc. 19-4 at 42.
IV. REQUEST FOR ADDITIONAL DISCOVERY
Pursuant to Federal Rules of Civil Procedure Rule 56(f) ("Rule 56(f)"), Plaintiffs request that the Court stay decision on the motion for summary judgment so that Plaintiffs may pursue additional discovery. Specifically, Plaintiffs seek to obtain: (1) a report that purports to show prior cases of the FPD using excessive force; and (2) any and all internal affairs information concerning Officer Ayello as well as Officer Ayello's personnel files. Doc. 20 at 4.
In order to be entitled leave to conduct additional discovery under Rule 56(f), the moving party must show that additional discovery would uncover specific facts which would preclude summary judgment. See Maljack Products, Inc. v. Goodtimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996). Plaintiffs have not demonstrated in this instance how the request for discovery would uncover specific facts which would defeat summary judgment. See State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Evidence pertaining to past conduct of the FPD and/or Officer Ayello would not shed any further light on the circumstances of Gardner's death or provide any additional information as to the reasonableness of Officer Ayello's conduct. As all of Plaintiffs' claims are reliant on proving Plaintiffs have a Fourth Amendment excessive force claim, and the requested discovery does not seek to provide specific facts regarding that claim, Plaintiffs fail to make a sufficient showing to merit Rule 56(f) relief.
Plaintiffs' Rule 56(f) request for a stay pending further ...