United States District Court, E.D. California
ESTATE OF TYLER S. RUSHING, et al., Plaintiffs,
AG PRIVATE PROTECTION, INC., et al., Defendants.
MORRISON C. ENGLAND JR., UNITED STATES DISTRICT JUDGE
of this action, Plaintiffs seek to recover for injuries
sustained as a result of a fatal altercation between Tyler S.
Rushing (“Decedent”) and various named
Defendants, which include employees of a private security
firm as well as members of the Chico Police Department and
the Butte County Sheriff's Office (generally referred to
as “Defendants”). Presently before the Court is
Plaintiffs' Motion for Summary Adjudication (ECF No. 23)
as to the discrete issue of whether one Defendant, Officer
Alex Fliehr, (“Officer Fliehr”) used excessive
force when he used his taser against Decedent after he had
been shot. For the following reasons, that Motion is
Federal Rules of Civil Procedure provide for summary judgment
when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). One of the principal purposes of Rule 56 is to
dispose of factually unsupported claims or defenses.
Celotex, 477 U.S. at 325.
also allows a court to grant summary judgment on part of a
claim or defense, known as partial summary judgment.
See Fed.R.Civ.P. 56(a) (“A party may move for
summary judgment, identifying each claim or defense-or the
part of each claim or defense-on which summary judgment is
sought.”); see also Allstate Ins. Co. v.
Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The
standard that applies to a motion for partial summary
judgment is the same as that which applies to a motion for
summary judgment. See Fed.R.Civ.P. 56(a); State
of Cal. ex rel. Cal. Dep't of Toxic Substances Control v.
Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying
summary judgment standard to motion for summary
summary judgment motion, the moving party always bears the
initial responsibility of informing the court of the basis
for the motion and identifying the portions in the record
“which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at
323. 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. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).
attempting to establish the existence or non-existence of a
genuine factual dispute, the party must support its assertion
by “citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits[, ] or declarations . . . or
other materials; or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). 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. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v.
Local No. 169, Assoc. of W. Pulp and Paper Workers, 971
F.2d 347, 355 (9th Cir. 1987). The opposing party must also
demonstrate that the dispute about a material fact “is
‘genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. In other
words, the judge needs to answer the preliminary question
before the evidence is left to the jury of “not whether
there is literally no evidence, but whether there is any upon
which a jury could properly proceed to find a verdict for the
party producing it, upon whom the onus of proof is
imposed.” Anderson, 477 U.S. at 251 (quoting
Improvement Co. v. Munson, 81 U.S. 442, 448 (1871))
(emphasis in original). As the Supreme Court explained,
“[w]hen the moving party has carried its burden under
Rule [56(a)], its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
Therefore, “[w]here 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.'” Id. at 587.
resolving a summary judgment motion, the evidence of the
opposing party is to be believed, and all reasonable
inferences that may be drawn from the facts placed before the
court must be drawn in favor of the opposing party.
Anderson, 477 U.S. at 255. Nevertheless, inferences
are not drawn out of the air, and it is the opposing
party's obligation to produce a factual predicate from
which the inference may be drawn. Richards v. Nielsen
Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal.
1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
generally, according to Plaintiffs, Officer Fliehr's
“use of a taser on a non-threatening, subdued, and
injured suspect lying on the ground violated the Fourth
Amendment, ” and Officer Flier “is not entitled
to qualified immunity.” Mot., ECF No. 23-1, at 6, 14.
The gist of Plaintiffs' argument is that at the time the
taser was used, Decedent posed no threat to officers because
he had been shot twice and was lying on the ground.
could very conceivably reject this argument, however,
because, as Defendants point out, there is ample evidence
that before Officer Fliehr resorted to using the taser, the
following events occurred: (1) just before 11:00 p.m., a
security guard was called out to a title and escrow company
building where an alarm had been tripped; (2) Decedent, who
was on the premises, stabbed the security guard who at some
point shot Decedent in the chest; (3) Decedent then fled and
locked himself in a bathroom within the building; (4) after
officers responded to the scene, Decedent announced that he
had a gun and that they were “all going to fucking
die”; (4) as it approached midnight, after officers
attempted to convince Decedent to surrender himself to obtain
medical care, they forced open the bathroom door and utilized
a shield and K-9 to try to subdue Decedent; (5) although
Decedent had already been shot once, he still managed to
attack the officers, stabbing one in the head with a ceramic
shard he had broken off of the toilet and one in the neck
with a ballpoint pen; (6) Decedent was then shot twice by an
officer and fell to the ground with one hand concealed
beneath him; (7) Officer Fliehr contends that he then saw
Decedent move; (8) Officer Fliehr then announced to other
officers that Decedent was not dead and deployed his taser so
Decedent could be handcuffed; and (9) when Decedent was
handcuffed, he still had the ballpoint pen in his hand. Given
the totality of these “tense, uncertain, and rapidly
evolving” circumstances, a jury could find that
utilizing the taser was reasonable. Graham v.
Connor, 490 U.S. 386, 396-97 (1989).
true even if the body camera footage from the event may not
clearly show that Decedent made any movement immediately
prior to Officer Fliehr deciding to use the taser. Whether or
not Decedent moved is not necessarily dispositive in the
first place because Defendants have offered evidence
supporting the unsurprising proposition that suspects often
“play possum” under circumstances such as those
here to lull their would-be attackers into a false sense of
security, hoping officers will approach with less caution and
make themselves vulnerable to attack. Especially given the
fact that Decedent had already stabbed three people with
makeshift weapons of convenience, a jury could find that it
was reasonable for officers to proceed based on the
assumption Decedent still presented a threat. Moreover, to
the extent Plaintiffs' argument turns on the available
body camera footage, Defendants also offer evidence that
given the camera's placement and the way the video is
captured, it does not necessarily reflect events from an
officer's particular perspective (e.g., the camera is
located below the officer's eyes at chest level and
purportedly utilizes two-dimensional technology as opposed to
three-dimensional), and does not undermine Officer
Fliehr's perception of events. Accordingly, for all of
the reasons just stated, Plaintiffs' Motion for Summary
Adjudication (ECF No. 23) is DENIED.
 Given this Court's
disproportionately high case load, and in the interest of
conserving judicial resources and expediting a decision in
this case, the Court will not recount details with which the
parties are intimately familiar. To be clear, the Court has
considered all evidence and arguments in the record, but it
limits its written decision ...