36 F.3d 65 (9th Cir. 1994), 93-15098, Fuller v. Vines

Docket Nº:93-15098.
Citation:36 F.3d 65
Party Name:James FULLER, Sr.; James Fuller, Jr., et al., Plaintiffs-Appellants, v. Officer VINES, et al., Defendants-Appellees.
Case Date:September 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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36 F.3d 65 (9th Cir. 1994)

James FULLER, Sr.; James Fuller, Jr., et al., Plaintiffs-Appellants,


Officer VINES, et al., Defendants-Appellees.

No. 93-15098.

United States Court of Appeals, Ninth Circuit

September 16, 1994

Argued and Submitted June 17, 1994.

As Amended on Denial of Rehearing

and Rejection of Suggestion for Rehearing

En Banc Nov. 23, 1994.

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J. Kirk Boyd and Ruth M. Berkowitz, Boyd, Huffman & Williams, San Francisco, CA, for plaintiffs-appellants.

A. Byrne Conley and Terry Senne, Gibbons, Lees & Edrington, Walnut Creek, CA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: HUG, SCHROEDER, and FERNANDEZ, Circuit Judges.

HUG, Circuit Judge:

James Fuller, Sr., James Fuller, Jr., and others in the Fuller family ("the Fullers") sued police officers of the City of Richmond and the City of Richmond under 42 U.S.C. Sec. 1983 for the killing of their pet dog, and James Fuller, Jr. ("James Jr.") sued for interference with his liberty rights when a police officer pointed a loaded gun at him when he objected to the killing of the dog. The Fullers also alleged supplemental state statutory claims and common law claims.

The Fullers' initial complaint alleged only the constitutional violations of: (1) substantive due process and (2) procedural due process. Based on the Fullers' initial complaint, the defendants moved for summary judgment. In opposition, the Fullers filed a motion for leave to amend their complaint to allege a violation of the Fourth Amendment, contending first that the shooting of the dog was a seizure of the Fullers' property, and second that the action of the officers constituted a seizure of the person of James Jr. The district court granted the defendants' motion for summary judgment and, in doing so, denied the Fullers' motion to amend the complaint. The district court also dismissed the state law claims. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm in part, reverse in part, and remand for further proceedings.


We review a grant of summary judgment de novo. Jones v. Union Pacific R.R., 968 F.2d 937, 940 (9th Cir.1992). Although the events that gave rise to the Fullers' suit are in dispute, this case is before us on a grant of summary judgment, and therefore, we must accept the Fullers' portrayal of the facts as set forth in the sworn affidavits as true. See McLaughlin v. Liu, 849 F.2d 1205, 1207-08 (9th Cir.1988). Viewed in this light, the facts before the district court were as follows.

At approximately noon on September 3, 1991, police officers were investigating a matter when they passed by the Fullers' front yard. The Fullers were in the yard, along with their pet dog, "Champ." The Fullers allege that, as the officers approached, Champ merely stood up from where he had been lying. The officers, on the other hand, contend that Champ charged them, barking and growling. James Fuller, Sr. contends that he pleaded with the officers not to shoot his dog and told them that he could control him. Nonetheless, the officers shot Champ twice, and Champ died shortly thereafter.

After the shooting, James Jr. was upset and was "wrestled to the ground by his

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friend out of fear of further confrontation" with the officers. The Fullers allege that one of the officers then pointed his gun at James Jr.'s head, drew back the hammer, and threatened to kill him, despite the fact that James Jr. was a "considerable distance" from the officers. The officers contend that James Jr. charged at them, and that a weapon was pointed at him in order to subdue him. The confrontation ended without further incident.

The Fullers filed suit in federal district court alleging that the shooting of Champ and the threat of force against James Jr. constituted violations of their civil rights pursuant to 42 U.S.C. Sec. 1983. The complaint alleged that the officers violated the Fullers' procedural and substantive due process rights. The complaint included claims against the City of Richmond for failure to properly train and supervise its officers. The complaint also asserted state law claims for negligent and intentional infliction of emotional distress, assault, and destruction of property.

Based on the original complaint, the defendants moved for summary judgment. The Fullers filed an opposition to the summary judgment motion, including a motion for leave to amend their complaint. The proposed amendment would have added allegations that the officers unlawfully "seized" the Fullers' property when they killed Champ and unlawfully "seized" James Jr. when an officer pointed a gun at him, both in violation of the Fourth Amendment.

The district court heard argument on the motions on October 16, 1992. On November 3, 1992, the court entered a memorandum opinion and order. In the order, the court granted the defendants' motion for summary judgment, finding as a matter of law that the Fullers could not establish that the officers' actions deprived them of any due process rights guaranteed by the Constitution. The court then dismissed the pendent state law claims. The district court also denied the motion to amend, finding that the proposed amendment would not cure the deficiencies in the complaint.

The Fullers then moved for reconsideration under Fed.R.Civ.P. 60(b) claiming that the court should address their...

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