United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND JR., JUDGE.
Willis (“Plaintiff”) initiated this action
against Defendants County of Sacramento
(“County”), Sacramento County Sheriff’s
Department (“Sheriff’s Department”),
Sheriff Scott Jones, and Officers David Cuneo and Adam
Tedford (collectively “Defendants”) seeking to
recover for injuries Plaintiff suffered when he was shot
during the course of a burglary. Plaintiff alleges violations
of both state and federal law, and, over the course of the
parties’ motion practice, the Court previously granted
in part and denied in part multiple motions to dismiss filed
by Defendants. ECF Nos. 15, 22. Presently before the Court is
Defendants’ subsequent Motion for Summary Judgment
directed at all but one remaining claim. ECF No. 31. For the
following reasons, that Motion is GRANTED in its
January 27, 2012, at just after two o’clock in the
morning, three Sheriff’s Department Deputies,
Defendants Tedford and Cuneo and a non-defendant deputy,
responded to an alarm at an “It’s a Grind”
coffee shop in Galt, California. When Tedford and Cuneo
arrived at the scene, they found Plaintiff burglarizing the
store. Plaintiff had utilized a 16-pound
sledgehammer to smash his way through the glass front
entrance, and Plaintiff still had the sledgehammer in his
possession when he saw that officers had surrounded his car.
When Plaintiff realized that law enforcement had arrived, he
ran to the back of the store, looking for an exit. According
to Plaintiff, he also wanted to get rid of the sledgehammer
because he did not want the officers to think he intended to
harm them. Having no luck finding a rear exit, Plaintiff ran
back to the front of the store, leaned the sledgehammer
against the counter and ducked down behind it.
approached the front of the shop and, when he shined his
flashlight through the store window, saw Plaintiff duck
behind the counter inside. The officers announced over the
radio that a burglary was in progress and entered the store
to apprehend Plaintiff. Since it was dark inside the
building, the officers used their flashlights to navigate
down the customer side of the shop’s L-shaped counter.
The short side of the “L” faced the front door,
and the officers made their way to the back of the long side
toward an opening in the counter that allowed access to the
employee section. In the meantime, Plaintiff had also headed
toward the back of the store on the opposite side of the
counter. As the deputies made their way around the counter,
however, Plaintiff quickly switched course and darted back in
the opposite direction, running down the employee side of the
counter toward the front of the store.
Cuneo followed Plaintiff down the employee side, while Deputy
Tedford ran back toward Plaintiff on the customer side. Still
running, Plaintiff grabbed the handle of the sledgehammer
from where he had left it leaning against the counter, and
hopped the counter toward the front exit. Cuneo saw Plaintiff
jump onto the counter holding in his right hand in the manner
he would if he was going to swing it what the officer thought
was an axe. Plaintiff does not dispute this version of
events, but emphasizes that he did not make any swinging or
turning movements at any time. Cuneo believed that Tedford,
who was still running down the customer side of the counter
with only his flashlight for illumination, was about to
intercept Plaintiff at the front of the store and that
Tedford did not know Plaintiff was armed, so Cuneo shot
Plaintiff. Officer Cuneo fired his weapon three times,
hitting Plaintiff with the first two shots and missing on the
to Plaintiff, he dropped the sledgehammer during the course
of his attempted escape when he was still standing on top of
the counter and then he felt the first shot in his hip. It is
undisputed that Plaintiff dropped the hammer near where he
hit the ground on the other side of the counter. Plaintiff
landed on all fours and felt the second shot in his lower
back when he was located approximately two feet from the
broken storefront. Cuneo’s third shot missed Plaintiff,
who, although hit twice, had by then managed to crawl through
the shattered glass at the front of the store. Less than
twenty seconds had elapsed from the time the officers entered
the coffee shop until Plaintiff jumped the counter and was
shot, and it took only two seconds for Plaintiff to hop the
counter and exit the building.
outside, Plaintiff ran another 50 to 100 feet before he
claims he gave up and voluntarily went to the ground.
According to Plaintiff, Officer Tedford then kicked him in
the ribs. Officer Tedford, on the other hand, contends that
he caught Plaintiff and pushed him to the ground, but never
kicked Plaintiff. Plaintiff was thereafter arrested and
treated for two weeks at Kaiser Hospital before being
discharged and booked into the County Jail, where he received
additional medical care. As a result of his injuries,
Plaintiff filed a claim with the County, pursuant to the
California Tort Claims Act, California Government Code
section 905, which was later denied. That claim made no
reference to being kicked by Deputy Tedford.
subsequently filed his instant suit in state court, alleging
causes of action under both state and federal law for:
violation of his federal civil rights pursuant to 42 U.S.C.
§ 1983 and 42 U.S.C. § 1985; violation of his state
civil rights pursuant to Cal. Civ. Code §§ 52.1 and
51.7; as well as state common law claims for battery,
negligence, intentional infliction of emotional distress, and
negligent hiring, supervision and retention.
removing the case to federal court pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1441, Defendants filed two
separate motions to dismiss, which both alleged that
Plaintiff had failed to state various cognizable claims.
Those motions were granted in part and denied in part,
leaving the following claims for adjudication through the
Motion for Summary Judgment now before the Court: (1) a
§ 1983 excessive force claim against Cuneo and a
Monell-type claim against the County for the
shooting; (2) a battery claim against Cuneo and the County
(vicariously) for the shooting; (3) an intentional infliction
of emotional distress (“IIED”) claim against
Cuneo and the County (vicariously) for the shooting; (4) a
§ 1983 claim against Tedford for allegedly kicking
Plaintiff; (5) a battery claim against Tedford and the County
(vicariously) for the kick; (6) an IIED claim against Tedford
and the County (vicariously) for the kick; and (7) a §
1983 Monell-type claim against the County, also for
the kick. Defendants now move for summary judgment as to each
cause of action except the § 1983 claim against Tedford.
That motion is GRANTED.
Federal Rules of Civil Procedure provide for summary judgment
when “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.” Fed.R.Civ.P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). One of the principal
purposes of Rule 56 is to dispose of factually unsupported
claims or defenses. Celotex, 477 U.S. at 323-24.
also allows a court to grant summary judgment on part of a
claim or defense, known as partial summary judgment.
See Fed.R.Civ.P. 56(a) (“A party may move for
summary judgment, identifying each claim or defense-or the
part of each claim or defense-on which summary judgment is
sought.”); see also Allstate Ins. Co. v.
Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The
standard that applies to a motion for partial summary
judgment is the same as that which applies to a motion for
summary judgment. See Fed.R.Civ.P. 56(a); see
also State of Cal., on Behalf of Cal. Dep't of Toxic
Substances Control v. Campbell, 138 F.3d 772, 780 (9th
Cir.1998) (applying summary judgment standard to motion for
summary judgment motion, the moving party “always bears
the initial responsibility of informing the district court of
the basis for its motion and identifying” the portions
in the record “which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323. If the moving party meets
its initial responsibility, the burden then shifts to the
opposing party to establish that a genuine issue as to any
material fact actually does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); First Nat'l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 288-89 (1968).
opposing party must demonstrate that the fact in contention
is material, i.e., a fact that might affect the outcome of
the suit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Owens
v. Local No. 169, Ass’n of W. Pulp & Paper
Workers, 971 F.2d 347, 355 (9th Cir. 1992). The opposing
party must also demonstrate that the dispute about a material
fact “is ‘genuine, ’ that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. In other words, the judge needs to answer
the preliminary question before the evidence is left to the
jury of “not whether there is literally no evidence,
but whether there is any upon which a jury could properly
proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.”
Id. at 251 (quoting Improvement Co. v.
Munson, 81 U.S. 442, 448 (1871)). As the Supreme Court
explained, “[w]hen the moving party has carried its
burden under Rule [56(a)], its opponent must do more than
simply show that there is some metaphysical doubt as to ...