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Rivera v. Cater

United States District Court, E.D. California

April 4, 2018

SIERRA RIVERA, individually and as successor in interest to JESSE ATTAWAY, Deceased; BA, a minor, individually and as successor in interest to JESSE ATTAWAY, Deceased, by and through MISTY RIVERA, as Guardian ad Litem; and JIM ATTAWAY, individually, Plaintiffs,



         Plaintiffs Sierra Rivera and BA, the daughters of the late Jesse Attaway (“Attaway” or “decedent”), along with Jim Attaway, the father of the decedent, bring this case individually and on behalf of the decedent, alleging seven causes of action under 42 U.S.C. § 1983 and California law against Andrew Cater (“Cater”) and Bao Mai (“Mai”), deputy sheriffs of Sacramento County; Scott Jones (“Jones”), Sheriff of Sacramento County; and the County of Sacramento (“the County”). Defendants now move to dismiss plaintiffs' entire Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 13.)

         I. Factual and Procedural Background

         According to reports, at approximately 5:00 a.m. on September 23, 2016, Attaway entered a home in Fair Oaks, Sacramento. (Compl. (Docket No. 1) ¶ 17.) He had no connection to the house and did not know the homeowner. (Id.) The homeowner discovered Attaway standing in the front room holding a carton of milk. (Id.) When confronted by the homeowner, Attaway asked the homeowner for his car keys and pleaded for the homeowner not to harm him. (Id.) Attaway expressed paranoid thoughts that the police were after him and seemed to be experiencing a psychotic episode. (Id.) After several minutes, Attaway left the home without further incident. He did not cause any harm to the home or its residents, or threaten to do so. (Id.)

         Attaway then attempted to enter a neighboring house through a partially open sliding glass door. (Id. ¶ 18.) He was confronted by two individuals, at which point Attaway backed away from the door while begging not to be hurt. (Id.) Again, Attaway did not cause any harm to this house or its residents, nor did he threaten to do so.

         Attaway's behavior prompted multiple calls to 911. (Id. ¶ 19.) None of the callers mentioned that Attaway had any weapons, and Attaway was in fact unarmed at all times. (Id.) Deputies Cater and Mai were dispatched to respond to these calls. (Id.) Cater and Mai found Attaway a few blocks away from where the 911 calls had been placed. (Id. ¶ 20.) Attaway initially ignored the deputies' commands to come towards them. (Id.) The deputies therefore slowly followed Attaway in their car until he came to a stop. (Id.) At that point, the deputies exited their car and assumed “positions of cover.” (Id.)

         The Complaint alleges that Attaway was unarmed and empty-handed throughout the entire incident. However, the Complaint also acknowledges that the deputies claim that when Attaway turned to face them, he raised his hands in response to their commands and they mistook the wallet he was holding for a firearm. (Id. ¶ 22.) Both deputies then fired their weapons, and at least one of the first shots hit Attaway. (Id.) The deputies contend that after Attaway was shot, he raised his hand again. (Id.) At that point, the deputies fired another round of shots at Attaway, and he was hit again. (Id. ¶ 23.) Attaway then fell to the ground and allegedly tried to raise his empty hands again. (Id. ¶ 24.) Both deputies again fired at Attaway as he remained on the ground, and one of those shots fatally struck Attaway in the head. (Id.)

         The deputies claim to have found Attaway's wallet approximately four feet away from his right foot after the shooting. (Id. ¶ 26.) In total, the deputies fired at least eighteen rounds at Attaway. (Id. ¶ 27.) Cater fired at least eleven, while Mai fired seven. (Id.) Twelve seconds passed between the first and last rounds of shots. (Id. ¶ 25.)

         On January 1, 2018, plaintiffs filed this action, alleging violation of decedent's Fourth Amendment right to be free from unreasonable seizure and excessive force pursuant to 42 U.S.C. § 1983; violation of decedent's rights under the California Constitution; negligence, wrongful death, assault, and battery pursuant to California State Common Law; failure to adequately train, supervise, and discipline police officers on the proper use of force pursuant to 42 U.S.C. § 1983; and violation of plaintiffs' Fourteenth Amendment right of substantive due process pursuant to 42 U.S.C. § 1983.

         II. Legal Standard

         On a Rule 12(b)(6) motion, the inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the plaintiff has stated a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Under this standard, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         III. Discussion

         A. First Claim: Excessive Force Against Cater and Mai

         Plaintiffs' first cause of action asserts a claim against defendants Cater and Mai for violations of Attaway's civil rights under 42 U.S.C. § 1983. While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393-94 (1989). Here, plaintiffs allege that Cater and Mai violated Attaway's right to be free from excessive force under the Fourth Amendment. (Compl. ¶ 39.)

         1. Excessive Force

         Defendants argue the Complaint fails to state a claim against Cater or Mai for use of excessive force because the facts demonstrate that the force used was objectively reasonable. (Defs.' P. & A. (Docket No. 13-1) at 3.) Whether an officer's conduct is objectively reasonable under the Fourth Amendment is a question of fact requiring consideration of factors such as “the nature and quality of the alleged intrusion on the individual's Fourth Amendment interests, ” Graham, 490 U.S. at 396 (internal citations omitted), as well as “(1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect actively resists detention or attempts to escape.” Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at 388).

         Here, it is undisputed that Cater and Mai used deadly force. While defendants argue that such force was reasonable, plaintiffs argue the opposite. As alleged, the facts do not show that there was any “severe” crime at issue[1] or that Attaway posed any threat to the officers' safety. Attaway was unarmed throughout the entire incident and, despite what defendants argue, the complaint alleges that Attaway's hands were empty throughout the entire incident as well. (Compl. ¶ 22-24.) Further, despite Attaway's initial failure to respond to the deputies' orders, by the time the shooting occurred, the Complaint alleges that Attaway was no longer resisting the officers or otherwise attempting to escape.

         Accordingly, taking plaintiffs' allegations as true, Attaway posed no danger to the officers, did nothing to provoke them, and there was no severe crime at issue. See Robinson v. Solano County,278 F.3d 1007, 1014 (9th Cir. 2002) (holding an officer's use of force was excessive in the absence of any of the factors enumerated in Graham). ...

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