United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE
an automobile chase, defendant police officers Eric Azarvand,
Gregory Dunn, and John Nesbitt shot and killed James E.
Rivera, Jr. (“Rivera”). Plaintiffs Dionne
Smith-Downs and James E. Rivera, Sr.
(“Plaintiffs”)-Rivera's parents-bring suit
against the defendant police officers, alleging that they
used excessive force against their son in violation of the
Fourth Amendment. Defendants have now moved for summary
judgment on all claims against them on the basis that the
force used against Rivera was reasonable. ECF Nos. 99-100.
For the reasons that follow, those motions are
had been a suspect in an armed carjacking of a blue Chevrolet
Astro van. See Azarvand & Dunn SUF ¶ 1;
Nesbitt SUF ¶ 1-2. On July 22, 2010, Nesbitt spotted the
van on a residential street, identified Rivera as the driver,
and notified dispatch. Nesbitt SUF ¶ 6. As a result,
Azarvand and non-party police officer Michael Hughes arrived
on the scene in separate marked police cars and attempted to
pull over the van. Azarvand & Dunn SUF ¶¶ 4,
5-7; Nesbitt SUF ¶¶ 7-8. Rivera did not pull over,
and instead a high-speed chase ensued wherein Hughes,
Azarvand, and Nesbitt all pursued the van in separate
vehicles. Azarvand & Dunn SUF ¶ 8; Nesbitt SUF
¶¶ 9-11. Dunn eventually joined the pursuit, and
ended up being the vehicle directly behind the van. Azarvand
& Dunn SUF ¶ 18-19. The pursuit ended when police
vehicles rammed the van and the van hit a parked car, drove
over the sidewalk, and ran into a house's garage.
Azarvand & Dunn SUF ¶¶19-20; Nesbitt SUF
striking the garage, the van penetrated the wall and became
lodged almost wholly within the garage. Nesbitt SUF ¶
19. Dunn stopped his vehicle directly behind the van, while
Azarvand parked his car to the left of the van. Azarvand
& Dunn SUF ¶ 25; Nesbitt SUF ¶¶ 22, 25.
The parties have not provided any indication of exactly where
Nesbitt parked, but it seems clear that he did stop his car
at the scene. Azarvand, Dunn, and Nesbitt all exited their
vehicles and drew their weapons. Azarvand & Dunn SUF
¶¶ 22, 26; Nesbitt SUF ¶¶ 24-26. Azarvand
positioned himself to the left of Dunn, and Nesbitt
positioned himself behind metal mailboxes to the right of
Dunn. Azarvand & Dunn SUF ¶¶ 25-26; Nesbitt SUF
¶¶ 25-26. Dunn positioned himself behind the open
driver-side door of his vehicle. Azarvand & Dunn SUF
¶ 23; Nesbitt SUF ¶ 23. Dunn was within a triangle
formed by the open door, the side of Dunn's vehicle, and
the side of the vehicle Rivera hit before striking the
garage. Azarvand & Dunn SUF ¶¶ 23; Nesbitt SUF
what happened next forms the basis of the main dispute
between Plaintiffs and Defendants. It is undisputed, however,
that the van's tires began spinning, spraying mud and
debris. Azarvand & Dunn SUF ¶¶ 40-41; Nesbitt
SUF ¶¶ 29-30. Without providing exactly how much
time passed, Defendants state that less than 30
seconds after they drew their weapons, the three
officers fired a total of 29 rounds at Rivera, killing him.
Azarvand & Dunn SUF ¶¶ 36-37, Nesbitt SUF
¶¶ 34-36, 38, 40. The officers all claim that they
fired because they feared that Dunn was in danger of being
hit by the van and fired to stop Rivera from reversing into
him. Dep. of Gregory Dunn, ECF No. 99-5, Ex. A, at
47:24-48:9; Dep. of Eric Azarvand, ECF No. 99-5, Ex. B, at
116:6-10; Decl. of John Nesbitt, ECF No. 100-3, ¶ 31.
However, they do not agree on the specific facts that led
them to form that concern.
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);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). One of the principal purposes of Rule 56 is to
dispose of factually unsupported claims or defenses.
Celotex, 477 U.S. at 325.
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); State
of Cal. ex rel. Cal. Dep't of Toxic Substances Control v.
Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying
the summary judgment standard to motion for summary
summary judgment motion, the moving party always bears the
initial responsibility of informing the court of the basis
for the 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. “However, if the nonmoving party bears the burden
of proof on an issue at trial, the moving party need not
produce affirmative evidence of an absence of fact to satisfy
its burden.” In re Brazier Forest Prods. Inc.,
921 F.2d 221, 223 (9th Cir. 1990). 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 v. Cities Serv. Co.,
391 U.S. 253, 288-89 (1968).
attempting to establish the existence or non-existence of a
genuine factual dispute, the party must support its assertion
by “citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits[, ] or declarations . . . or
other materials; or 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). The 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. 1987). 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.” Anderson,
477 U.S. 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 the material
facts.” Matsushita, 475 U.S. at 586.
Therefore, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for
trial.'” Id. at 587.
resolving a summary judgment motion, the evidence of the
opposing party is to be believed, and all reasonable
inferences that may be drawn from the facts placed before the
court must be drawn in favor of the opposing party.
Anderson, 477 U.S. at 255. Nevertheless, inferences
are not drawn out of the air, and it is the opposing
party's obligation to produce a factual predicate from
which the inference may be drawn. Richards v. Nielsen
Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal.
1985), aff'd, 810 F.2d 898 (9th Cir. 1987).