United States District Court, E.D. California
MARIA VENTURA, individually and on behalf of the ESTATE OF OMAR VENTURA and the HEIRS OF OMAR VENTURA, Plaintiffs,
OFFICER JENNIFER RUTLEDGE; UNKNOWN POLICE OFFICERS; and CITY OF PORTERVILLE, CALIFORNIA, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 22)
matter came before the court on February 5, 2019 for a
hearing on defendants' motion for summary judgment. (Doc.
No. 22.) Attorney Kevin Little appeared telephonically on
behalf of plaintiffs and attorney Bruce Praet appeared
telephonically on behalf of defendants. The court has
considered the parties' briefs and oral arguments, and
for the reasons set forth below, will grant defendants'
motion for summary judgment.
facts that follow are undisputed unless otherwise noted.
Decedent Omar Ventura (hereinafter “Omar”)
fathered two children with Martha Andrade (hereinafter
“Martha”), though the two were never married and
did not live together. (Doc. No. 22 at 7.) On December 24,
2015, Martha called 911 to report that Omar had hit her, hit
his mother, Maria Ventura (hereinafter “Maria”),
and smashed the window of Martha's vehicle. (Doc. No.
25-2 at ¶ 1.) Officer Jennifer Rutledge of the
Porterville Police Department responded to the call as a
“415V, ” or violent domestic disturbance.
(Id. at ¶ 2.)
Officer Rutledge was interviewing Martha, Martha pointed to
Omar who walking up the street and exclaimed,
“That's him.” (Id. at ¶ 3.) As
Omar continued to approach, Martha moved behind trash cans in
the driveway. (Id. at ¶ 4.) Officer Rutledge
gave several orders to Omar to stop, which Omar ignored.
(Id. at ¶ 5.) As Omar approached Martha, he
removed a knife from his pocket, and asked Martha, “Is
this what you wanted?” (Id. at ¶¶
plaintiffs do not dispute that Omar removed a knife from his
pocket as he approached Martha, they do dispute whether Omar
presented a threat at the time. (Id. at ¶¶
10- 11.) Plaintiffs contend that Officer Rutledge was at
least ten yards away from Omar and was not herself
endangered. (Id.) Plaintiffs further contend that
Omar was walking normally and did not appear to be about to
harm anyone. (Id.)
Rutledge warned Omar, “Stop or I'll shoot.”
(Id. at ¶ 8.) When Omar continued to approach
Martha with his knife in hand, Officer Rutledge fired two
rapid shots, fatally striking Omar. (Id. at ¶
9.) The parties do not dispute that Omar had advanced to less
than twenty feet from Martha at the time he was shot by
Officer Rutledge. (Id. at ¶ 10.)
Maria Ventura and the Estate and Heirs of Omar Ventura
commenced this action against Officer Rutledge and the City
of Porterville on February 16, 2017. (Doc. No. 1.)
Plaintiffs' operative complaint asserts the following
causes of action: (1) violation of the Fourth Amendment of
the United States Constitution, based on the excessive use of
force; (2) violation of the Fourteenth Amendment right to
familial association; (3) municipal liability based on
unconstitutional customs, policies, and practices; (4)
violation of California Civil Code § 52.1 (the
“Bane Act”); (5) negligence; (6) battery; and (7)
December 12, 2018, defendants filed the pending motion for
summary judgment. (Doc. No. 22.) Therein, defendants
represent that the parties met and conferred prior to the
filing of the motion for summary judgment, and that
plaintiffs agreed to voluntarily dismiss the Monell
claims against the City. (Id. at 1.) Defendants
argue that they are entitled to judgment as a matter of law
as to all remaining claims because: (1) the use of force by
defendants was objectively reasonable; (2) plaintiffs fail to
meet the heightened “purpose to harm” standard
required by the Fourteenth Amendment; (3) Officer Rutledge is
entitled to qualified immunity; and (4) plaintiffs'
remaining state law claims fail in the absence of a
constitutional violation. (Id. at 2.) Plaintiffs
filed their opposition to the motion for summary judgment on
January 22, 2019, and defendants filed their reply on January
28, 2019. (Doc. Nos. 23, 25.)
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.”
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 the adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). 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, and/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 Am., 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
nonmoving party, see Wool v. Tandem Computs., Inc.,
818 F.2d 1433, 1436 (9th Cir. 1987).
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).
evaluating the evidence to determine whether there is a
genuine issue of fact, ” the court draws “all
reasonable 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). Undisputed facts are taken as true
for purposes of a motion for summary judgment. Anthoine
v. N. Cent. Counties Consortium, 605 F.3d 740, 745 (9th
Cir. 2010). 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 nonmoving party, there
is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted).
Federal Law Claims
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 the conduct
complained of was committed by a person acting under color of
state law, and that this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or the
laws of the United States. 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).
noted above, plaintiffs assert violations of the Fourth and
Fourteenth Amendments against Officer Rutledge. The parties
do not dispute that Officer Rutledge was acting under color
of state law at the relevant time. Therefore, the only
remaining questions are whether Officer Rutledge deprived
plaintiffs of their constitutional rights, and if so, whether
she is entitled to qualified immunity.
Fourth Amendment Claim
first allege that Officer Rutledge employed excessive force
against Omar on December 24, 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).
[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 where some force is justified, the amount actually used
may be excessive.
Id. at 853 (citations and internal quotations
considering the pending motion for summary judgment, the
following admonition of the Ninth Circuit with respect to the
use of summary judgment in cases involving claims of
excessive use of force must be kept in mind:
Under the Fourth Amendment, law enforcement may use
“objectively reasonable” force to carry out such
seizures; as in the unlawful arrest analysis, this objective
reasonableness is determined by an assessment of the totality
of the circumstances. . . . Because this inquiry is
inherently fact specific, the “determination whether
the force used to effect an arrest was reasonable under the
Fourth Amendment should only be taken from the jury in rare
Green v. City & County of San Francisco, 751
F.3d 1039, 1049 (9th Cir. 2014) (citations omitted). In the
instant case, while many of the facts before this court are
uncontroverted on summary judgment, such as the nature and
quantum of the deadly force utilized, as explained below
there is nevertheless a genuine dispute of material fact as
to the reasonableness with which that force was applied.
Nature and Quality of the Intrusion
court begins its analysis by assessing both the type and the
amount of force used. See Bryan, 630 F.3d at 824;
Davis v. City of Las Vegas, 478 F.3d 1048, 1055 (9th
Cir. 2007). Here, it is undisputed that Officer Rutledge
fired her weapon at Omar twice, fatally striking him.
(See Doc. No. 25-2 at ¶ 9.) Shooting a suspect
with a firearm constitutes use of deadly force. Blanford
v. Sacramento County, 406 F.3d 1110, 1115 n.9 (9th Cir.
2005) (defining “deadly force” as “force
creating a substantial risk of causing death or serious
bodily injury”) (citing Smith v. City of
Hemet, 394 F.3d 689, 704-07 (9th Cir. 2005) (en banc)).
It is well established that:
The intrusiveness of a seizure by means of deadly force is
unmatched. The use of deadly force implicates the highest
level of Fourth Amendment interests both because the suspect
has a fundamental interest in his own life and because such
force frustrates the interest of the individual, and of
society, in judicial determination of guilt and punishment.
A. K. H. by & through Landeros v. City of
Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (citations
and quotation marks omitted). Accordingly, “[d]eadly
force is permissible only ‘if the suspect threatens the
officer with a weapon or there is probable cause to believe
that he has committed a crime involving the infliction or
threatened infliction ...