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Kenney v. City of San Diego

United States District Court, S.D. California

February 27, 2018

JOHN B. KENNEY, Plaintiff,
v.
THE CITY OF SAN DIEGO; SAN DIEGO POLICE DEPARTMENT; KASEYLEE LAWRENCE; and MATTHEW KOERBER, Defendants.

          ORDER

          William Q. Hayes, United States District Court

         The matter before the Court is the motion for summary judgment filed by Defendants the City of San Diego and the San Diego Police Department. (ECF No. 591).

         I. PROCEDURAL BACKGROUND

         On October 21, 2013, Plaintiff John B. Kenney initiated this action by filing a First Amended Complaint alleging that he was subjected to the deprivation of his rights under federal and state law as a result of his involvement with the Occupy San Diego protests in late 2011 and early 2012. (ECF No. 21). The Complaint alleged facts describing five incidents involving the San Diego Police Department (“SDPD”), three named San Diego Police Officers, and Doe San Diego Officers 1-200.

         On January 28, 2014, the Court granted the motion to dismiss portions of the Complaint filed by the City Defendants and the Sheriff's Department. (ECF No. 33).

         On August 13, 2015, Defendants Lawrence, Thompson, Stum, City of San Diego (“the City”), and the SDPD filed separate motions for full or partial summary judgment. (ECF Nos. 330, 331, 332, 333).

         On March 29, 2016, this Court entered an Order which stated in part:

IT IS FURTHER ORDERED that 1) the motion for summary judgment (ECF No. 330) filed by Defendant Lawrence is denied in part and granted in part, 2) the motion for summary judgment (ECF No. 331) filed by Defendant Thompson is granted, 3) the motion for summary judgment (ECF No. 332) filed by Defendant Stum is granted, and 4) the motion for summary judgment (ECF No. 333) filed by Defendants City of San Diego and San Diego Police Department is denied in part and granted in part.
All claims in the Complaint against Doe Defendant Police Officers, Defendant Lawrence, SDPD, and the City of San Diego for acts which took place on January 31, 2012 for excessive force, illegal search, Sixth Amendment, right to counsel, Eighth Amendment, Ninth Amendment, equal protection, Article four, false arrest, negligence, intentional infliction of emotional distress, and invasion of privacy are dismissed.
All claims in the Complaint for negligence (third claim), assault (fourth claim), battery (fifth claim), negligent or intentional infliction of emotional distress (seventh claim), and invasion of privacy (twelfth claim) against Defendants San Diego Police Department and City of San Diego are dismissed.
All claims in the Complaint against all Defendants for the alleged actions taken on November 2, 2011 and March 24, 2012 are dismissed for the reasons stated in this order.

(ECF No. 385 at 20-21). With respect to the unlawful policies and procedures claim against the City and the SDPD, the Court stated,

The facts in this record establish that the SDPD had constitutional policies and procedures and that the officers were trained and instructed regarding these policies. There are no facts in the record regarding the application of these policies on October 14, 2011 and December 9, 2011. The Court concludes that there is a genuine issue of material fact as to whether Plaintiff may prevail on his claim regarding actions taken by officers on January 31, 2012. At this stage in the proceedings, the Court does not conclude that Defendant City of San Diego and SDPD are entitled to summary judgment in their favor.

(ECF No. 385 at 19).

         On December 16, 2016, Defendants Kevin Armentano, Steven Eraca, Matthew Koerber, David Mitchell, James Milano, Rodolphe Sainte-Agathe, Craig Shumate, and Erick Valdez filed a motion for full or partial summary judgment. (ECF No. 461). On June 14, 2017, the Court granted in part and denied in part the motion for full or partial summary judgment. The Court stated:

         IT IS HEREBY ORDERED that the motion for full or partial summary judgment (ECF No. 461) filed by Defendants Kevin Armentano, Steven Eraca, Matthew Koerber, David Mitchell, James Milano, Erick Valdez, Rodolphe Sainte-Agathe, and Craig Shumate is denied in part and granted in part. The following claims remain for trial:

1) claim pursuant to 42 U.S.C. ยง 1983 of excessive force and violation of First Amendment against Defendant Koerber ...

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