United States District Court, S.D. California
JOHN B. KENNEY, Plaintiff,
THE CITY OF SAN DIEGO; SAN DIEGO POLICE DEPARTMENT; KASEYLEE LAWRENCE; and MATTHEW KOERBER, Defendants.
William Q. Hayes, United States District Court
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).
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.
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).
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).
March 29, 2016, this Court entered an Order which stated in
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
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
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).
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
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. § 1983 of excessive force
and violation of First Amendment against Defendant Koerber