United States District Court, E.D. California
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,
ANDREW CATER; BAO MAI; SCOTT JONES; and COUNTY OF SACRAMENTO, Defendants.
MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
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.)
Factual and Procedural Background
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.)
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.
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.)
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.
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.)
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.
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).
First Claim: Excessive Force Against Cater and Mai
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.)
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).
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 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.
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). ...