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Covert v. City of San Diego

United States District Court, S.D. California

March 23, 2017

MARK COVERT, Plaintiff,


          Hon. Anthony J. Battaglia United States District Judge

         Presently before the Court are several motions brought by Defendants City of San Diego, Officer C. Bernard, and Officer Crawford. (Doc. Nos. 45, 46, 51.) Pursuant to Local Rule 7.1.d.1, the Court found these motions suitable for determination on the papers. Accordingly, the hearing date set for March 2, 2017, was vacated. With the issuance of this order, the Court GRANTS IN PART AND DENIES IN PART Defendants Bernard and Crawford's motion to dismiss, (Doc. No. 45), GRANTS Defendants Bernard and Crawford's unopposed motion to file documents under seal, (Doc. No. 46), and GRANTS Defendant City of San Diego's motion to request to be DISMISSED from this matter WITH PREJUDICE. (Doc. No. 51.)


         Plaintiff Mark Covert (“Plaintiff”) is a fifty-seven year old retired Navy Seal. (Doc. No. 41 ¶ 8.) Due to a training accident while in the Navy, Plaintiff suffers from severe depression, and Post Traumatic Stress Disorder (“PTSD”). (Id.) Plaintiff also suffers from skin cancer and herniated disks in his back. (Id.) On information and belief, Plaintiff alleges that Defendant Christopher Bernard and Defendant Brett Crawford (collectively referred to as “Defendants”) are employed by the city of San Diego, and in doing the acts alleged, acted within the course and scope of their employment. (Id. ¶¶ 4-6.)

         On March 1, 2015, Plaintiff went to the Veterans Affairs Hospital (“V.A. Hospital”) in La Jolla, California, because he was feeling depressed. (Id. ¶ 10.) Plaintiff was then treated and sent home. (Id.) The next day, Plaintiff went back to the V.A. Hospital for a scheduled treatment for his skin cancer. (Id. ¶ 11.) Due to the length of time and pain involved in the procedure, Plaintiff asked to reschedule the appointment. (Id.) Plaintiff then returned home. (Id.)

         Shortly after Plaintiff left, Dawn Miller at the V.A. Hospital contacted the police and requested a welfare check on Plaintiff. (Id. ¶ 12.) On the same day, Defendants arrived at Plaintiff's home. (Id. ¶ 13.) As Plaintiff was napping at the time, one of Plaintiff's daughters let Defendants in. (Id.)

         After entering, Defendants and Plaintiff conversed about Plaintiff's health and family life. (Id. ¶ 15.) During the conversation, Plaintiff alleges that he was generally calm and polite with Defendants, though he did become agitated at times. (Id.) At the end of their discussion, Defendants told Plaintiff that they wanted to take him to be examined by a doctor. (Id. ¶ 16.) Plaintiff agreed to go with Defendants, however, before leaving he wished to call someone to pick up his son at school. (Id. ¶ 17.) Defendants however refused to let Plaintiff call anyone and said that they would send a police car to pick up his son. (Id.) Not wanting his son to be scared or embarrassed by a police car picking him up, Plaintiff told Defendants that if he would not be allowed to call someone about his son that he would not go with them. (Id.)

         Plaintiff contends that Defendants then grabbed him and threw him on the floor, causing him to hit his head on the edge of a coffee table as he fell. (Id. ¶ 18.) This resulted in a gash to Plaintiff's head. (Id.) Plaintiff also alleges that while he was on the floor, one of the Defendants put his foot or knee on Plaintiff's back where he had recently had an epidural treatment. (Id. ¶ 19.) Though Plaintiff cried out in pain, the Defendant did not lift his foot or knee from Plaintiff's back.[2] (Id.) During this altercation, Plaintiff also alleges that Defendant Bernard tased Plaintiff for thirteen continuous seconds without releasing the trigger, when a standard tase cycle lasts only up to five seconds. (Id. ¶ 22.)

         The confrontation described above was not caught on Defendants' body worn camera videos (“BWCV”) as Plaintiff argues that Defendants intentionally turned off their body worn cameras. (Id. ¶ 20.) Thus, it was while the BWCV were turned off that Plaintiff contends the alleged excessive force occurred. (Id.)

         After Plaintiff was subdued, additional officers arrived on the scene. (Id. ¶ 23.) Paramedics then took Plaintiff out of his home on a gurney with four-point restrains on. (Id.) At the same time, a senior officer on the scene reminded Defendants that their BWCV should be turned on. (Id.)

         Plaintiff was taken to University of California San Diego Medical Center, where he was held until around 11:00 PM. (Id. ¶ 24.) While at the hospital, doctors ordered X-Rays of Plaintiff's torso and found that he had two broken ribs. (Id.) Plaintiff was then released later that night. (Id. ¶ 25.) On March 4, 2015, Plaintiff went to the emergency room at the V.A. Hospital and obtained another X-Ray that confirmed that Plaintiff's pain was from two broken ribs. (Id. ¶ 26.)

         Plaintiff instituted this action on September 20, 2015. (Doc. No. 1.) The Court then granted and denied several joint motions to extend discovery deadlines, and motions to continue the mandatory settlement conference. (See Doc. Nos. 14, 17, 18, 20.) On October 26, 2016, the City of San Diego and Defendants filed a motion for judgment on the pleadings, (Doc. No. 21), which was denied as moot as the Court granted Plaintiff's motion for leave to amend. (Doc. No. 36.) On December 20, 2016, Plaintiff filed his FAC. (Doc. No. 41.) On January 3, 2017, Defendants filed the present motions, their motion to dismiss and motion to file documents under seal. (Doc. Nos. 45, 46.) On the same day, Defendant City of San Diego filed a motion to request to be dismissed from the present lawsuit with prejudice. (Doc. No. 51.)


         A. Motion to Dismiss

         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A] court may dismiss a complaint as a matter of law for (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal. Inc., 88 F.3d 780, 783 (9th Cir. 1996) (citations omitted). However, a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).

         Notwithstanding this deference, the reviewing court need not accept “legal conclusions” as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         B. Motions to Seal

         Courts have historically recognized a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 & n.7 (1978). “Unless a particular court record is one ‘traditionally kept secret, ' a ‘strong presumption in favor of access' is the starting point.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). In order to overcome this strong presumption, a party seeking to seal a judicial record must articulate justifications for sealing that outweigh the public policies favoring disclosure. See Kamakana, 447 F.3d at 1178-79. In turn, the court must “conscientiously balance[] the competing interests of the public and the party who seeks to keep certain judicial records secret.” Id. at 1179 (quoting Foltz, 331 F.3d at 1135) (internal quotation marks omitted).

         “After considering these interests, if the court decides to seal certain judicial records, it must ‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.'” Id. (quoting Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). However, where the material is, at most, “tangentially related” to the merits of the case, the request to seal may be granted on a showing of “good cause.” Ctr. For Auto Safety v. Chrysler Grp., LLC., 809 F.3d 1092, 1097 (9th Cir. 2016).


         A. Defendant City of San Diego's Motion to be Dismissed with Prejudice

         In the interests of judicial economy, the Court will turn to Defendant City of San Diego's assertion that it should be dismissed from this matter with prejudice as Plaintiff's FAC has removed all claims and causes of action against it. (Doc. No. 51-1 at 2-3.) Plaintiff does not oppose the City's ...

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