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Centeno v. City of Fresno

United States District Court, E.D. California

August 30, 2017



         This case arises from a September 3, 2015 encounter between Freddy Centeno and two officers of the Fresno Police Department. Mr. Centeno was shot by the officers that morning shortly after 11:00 a.m., in the southwest part of Fresno, California. He died weeks later. Plaintiffs-Mr. Centeno's adult daughter and his parents-bring this civil rights action against the City of Fresno and Officers Felipe Miguel Lucero and Zebulon Price. (See Doc. No. 1-2.)

         On May 16, 2017, defendants' motion for summary judgment came before the court for hearing. Attorneys Cristobal Galindo and Kent Henderson appeared on behalf of plaintiffs. Attorney Anthony Sain appeared on behalf of defendants. After oral argument, defendants' motion was taken under submission. For the reasons stated below, defendants' motion for summary judgment will be granted in part and denied in part.


         A. Factual Background[1]

         On September 3, 2015, at approximately 11:00 a.m., Paola Hermosillo was with three children in the living room of her apartment unit on South Orange Avenue, in Fresno, California, when Freddy Centeno approached the apartment and banged on her door. (DUMF ¶¶ 2-3.) When Ms. Hermosillo went to the door, Mr. Centeno-who was wearing black shorts and no shirt-identified himself as a federal agent, warned Ms. Hermosillo that she was not supposed to be selling drugs at the residence, and asked for someone named “George.” (DUMF ¶ 4, 7.)[2] Ms. Hermosillo remembered Mr. Centeno from a prior, similar encounter when he had also demanded to see “George, ” before her husband made Mr. Centeno leave. (DUMF ¶ 8.) On this occasion, Mr. Centeno pulled out an object, which Ms. Hermosillo believed to be a gun, and pointed it toward her. (DUMF ¶¶ 5, 13.) Ms. Hermosillo closed her door and called 911. (Id.) As Mr. Centeno walked away from the apartment complex, Ms. Hermosillo relayed this information, as well as a physical description of Mr. Centeno, to an emergency dispatcher. (See DUMF ¶¶ 7, 17.)

         Around the time Mr. Centeno had approached Ms. Hermosillo's apartment, Officer Felipe Miguel Lucero and his partner Officer Zebulon Price of the Fresno Police Department (“FPD”) were responding to an unrelated matter nearby. (DUMF ¶ 39.) Officer Lucero was wearing blue jeans, a t-shirt, tennis shoes, and a black nylon tactical vest with an FPD star on the front left chest and a patch on the back that read “Police M.A.G.E.C.” (DUMF ¶¶ 37-38.) Officer Lucero was carrying his FPD-issued firearm, a backup firearm, and taser. (Id.) Officer Price also wore a tactical vest. (DUMF ¶ 37.)

         Sergeant Walter Boston, a supervising officer, approached Officers Lucero and Price and advised them of a call for service involving a subject with a firearm. (DUMF ¶ 39.) Sergeant Boston told Lucero that the subject was a Hispanic male, was wearing no shirt and had multiple tattoos, was wearing black gym shorts, and was walking northbound on Orange Avenue toward Ventura Avenue. (DUMF ¶ 40.) Sergeant Boston also told Lucero that the reporting party stated that the subject had pulled out a small black handgun, identified himself as a federal agent, and demanded to see someone named “George.” (DUMF ¶¶ 41-42.) Officers Lucero and Price got into their vehicle, an unmarked gold-colored Nissan Altima, and headed toward the stated location, with Officer Lucero driving. (PUMF ¶ 20; DUMF ¶ 44.) Officer Price then advised dispatch that he and Officer Lucero were on their way to the scene. (DUMF ¶ 80; see also Declaration of Julie Fleming (Doc. No. 40-1) (“Fleming Decl.”), Ex. D.) Dispatch rebroadcast a description of a Hispanic male wearing black shorts, no shirt, and with tattoos all over his arms and back, last seen walking northbound on Orange toward Ventura. (Id.) The dispatcher further stated that the suspect knocked on the door of the reporting party, identified himself as a federal agent, asked if “George” lived there and if the reporting party had any drugs, and pulled out a weapon. (Id.) As Officers Lucero and Price approached Orange Avenue, Price asked dispatch again for a description of the suspect. (DUMF ¶ 82.) Dispatch replied that the suspect was a Hispanic male with black shorts, no shirt, and multiple tattoos, and that he had a small black handgun which he put in his front pocket. (DUMF ¶ 82; see also Fleming Decl., Ex. D.)

         Officers Lucero and Price turned on their body cameras as their car approached Mr. Centeno's location. (DUMF ¶¶ 45, 86.)[3] As the officers arrived at the intersection of South Orange Avenue near East El Monte Way, they saw an individual generally matching the suspect's description as given over dispatch, walking northbound on the east sidewalk of Orange Avenue. (DUMF ¶¶ 46-47, 84.) Officer Lucero parked their vehicle facing south along the east curb of Orange Avenue, approximately forty to fifty feet away from Mr. Centeno. (DUMF ¶¶ 48, 50.)

         Both officers exited the vehicle and drew their guns, as Officer Lucero identified himself as “Fresno Police” and Officer Price announced “Fresno P.D.” (DUMF ¶¶ 52, 54, 87.) Both ordered Mr. Centeno to get on the ground. (See DUMF ¶ 55.)[4] Mr. Centeno dropped his hands down to his sides and reached into his shorts pocket with his right hand. (DUMF ¶¶ 55, 87.) Mr. Centeno then began to lift his right hand from his pocket, exposing a small black object, which both officers believed to be a gun. (DUMF ¶¶ 56-58, 88-89.) That object was, in reality, a black plastic spray nozzle. (PUMF ¶ 13; see Fleming Decl., Ex. I.)

         Officer Lucero ordered Mr. Centeno to get on the ground a second time. (DUMF ¶ 60.) Believing Mr. Centeno to pose a threat to either himself or his partner, Officer Lucero fired his gun five times at Mr. Centeno. (DUMF ¶¶ 63-65.) Officer Lucero first fired three shots when he believed Mr. Centeno began to raise the object from his pocket. (DUMF ¶¶ 65-66.) As Mr. Centeno's body turned to the left, which Officer Lucero interpreted as an attempt to flee, Officer Lucero fired two additional shots. (DUMF ¶¶ 67-69.) Within the same period of time, Officer Price, fearing Mr. Centeno was pulling a gun out to shoot Lucero, fired his gun five times at Mr. Centeno from about thirty feet away. (DUMF ¶¶ 89-90, 93-95.)[5] However, the entire confrontation-from the officers' exiting their unmarked car until the conclusion of the shooting-lasted approximately a mere five seconds. (DUMF ¶ 72; see also Fleming Decl., Exs. S, U, V.)[6]

         Mr. Centeno died on or around September 23, 2017, twenty-three days after his encounter with Officers Lucero and Price. An autopsy was performed on Mr. Centeno's body, which identified eight gunshot wounds. (See PUMF ¶¶ 60-69.)

         B. Procedural Background

         Plaintiffs commenced this action in the Fresno County Superior Court on March 23, 2016. (Doc. No. 1-2.) The case was subsequently removed to this federal court by defendants on May 10, 2016. (Doc. No. 1.) Plaintiffs' complaint states the following claims: (1) violation of the Fourth Amendment of the United States Constitution, based on excessive use of force; (2) violation of the Fourteenth Amendment right to due process; (3) municipal liability based on unconstitutional customs, policies, and practices; and (4) state law wrongful death and survival, based on intentional or negligent conduct.

         On March 28, 2017, following the conclusion of discovery, defendants moved for summary judgment in their favor as to each of plaintiffs' claims. (Doc. No. 40.) On May 2, 2016, plaintiffs filed an opposition to that motion. (Doc. No. 51.) On May 9, 2017, defendants filed a reply. (Doc. No. 56.)


         Summary judgment is appropriate when the moving party “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).

         In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “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 by showing that such materials “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)(A), (B). When the non-moving party bears the burden of proof at trial, as plaintiffs do here, “the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Id. 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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). 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, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250; Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'” Matsushita, 475 U.S. at 587 (citations omitted).

         “In evaluating the evidence to determine whether there is a genuine issue of fact, ” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587 (citation omitted).


         A. Federal Section 1983 Claims

         The Civil Rights Act provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. Thus, to prevail on a valid claim under § 1983, a plaintiff must prove that (i) the conduct complained of was committed by a person acting under color of state law; (ii) this conduct deprived a person of constitutional rights; and (iii) there is an actual connection or link between the actions of the defendants and the deprivation allegedly suffered by decedent. See Parratt v. Taylor, 451 U.S. 527, 535 (1981); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-95 (1978); Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).

         Plaintiffs, as successors in interest to decedent Freddy Centeno and individually, allege violations of the Fourth and Fourteenth Amendments against defendant Officers Lucero and Price. Plaintiffs also allege liability on the part of defendant City of Fresno (“City”) under Monell.

         1. Fourth Amendment Claim

         Plaintiffs first allege that defendant Officers Lucero and Price employed unconstitutional excessive force against Mr. Centeno on September 3, 2015. A claim that a law enforcement officer used excessive force during the course of an arrest is analyzed under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). Under this standard, “‘[t]he force which [i]s applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors.'” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (quoting Alexander v. City & County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)); see also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003). Thus, in light of the facts and circumstances surrounding a law enforcement officer's actions, courts “must balance the nature of the harm and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (citations and internal quotations omitted); see also Scott v. Harris, 550 U.S. 372, 383-84 (2007); Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Liston, 120 F.3d at 976. “Force is excessive when it is greater than is reasonable under the circumstances.” Santos, 287 F.3d at 854 (citing Graham, 490 U.S. 386). Accordingly,

[a]lthough it is undoubtedly true that police officers are often forced to make split-second judgments, and that therefore not every push or shove, even if it may seem unnecessary in the peace of a judge's chambers is a violation of the Fourth Amendment, it is equally true that even ...

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